Opinion
No. WD54316
Opinion filed: July 28, 1998
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THE HONORABLE JOHN I. MORAN, JUDGE.
C. Robert Buckley, Independence, for appellant.
Michael E. McCausland, Ruth C. Saunders, HARRIS, McCAUSLAND SCHMITT, P.C., Kansas City, for respondent.
Before Ulrich, C.J., Smart and Smith, JJ.
Christine Snelling appeals from the judgment of the trial court, following jury trial, assessing damages against Paul Gress in the amount of $5,000 and finding Ms. Snelling thirty percent at fault in the automobile collision in which Ms. Snelling was injured. Ms. Snelling raises five points of trial court error. She contends that the trial court erred by (1) refusing to submit a proposed instruction withdrawing from the jury's consideration any prior unrelated injuries where the evidence did not support a finding that Ms. Snelling's injuries were caused by a source other than the automobile collision and where the court gave conflicting damage and the comparative fault instructions; (2) denying her motion for directed verdict at the close of Mr. Gress's case and allowing the jury to consider her alleged comparative fault for failure to keep a proper lookout where the evidence did not support submission of the comparative fault instruction; (3) permitting Mr. Gress to cross-examine Ms. Snelling with a letter written by Ms. Snelling's treating physician, Dr. Ketcherside, where the letter was hearsay and did not qualify for the business records exception to the hearsay rule; (4) admitting Dr. Ketcherside's testimony discussing the issue of "secondary gain" where the testimony was irrelevant, prejudicial, without foundation, attempted to discredit Ms. Snelling and improperly attacked Ms. Snelling's credibility; and (5) striking portions of Dr. Truitt Swaim's deposition testimony, as an expert witness, who testified on behalf of Ms. Snelling, where the incomplete answer was taken out of context due to the partial striking of the answer. The judgment of the trial court is affirmed.
FACTS
Christine Snelling was involved in an automobile collision on April 30, 1992, when the vehicle she was operating was struck by a vehicle operated by Paul Gress. The accident occurred on U.S. Highway 40 near the intersection of AA Highway in Blue Springs, Missouri. Ms. Snelling was traveling west on Highway 40. Although this location has undergone construction since the accident, on April 30, 1992, Highway 40 expanded from a two lane highway to a four lane highway east of the accident site. To accommodate the additional lane, diagonal yellow lines were painted on Highway 40 near the median separating the east and west bound lanes. Immediately west of the diagonal lines, approximately three to four car lengths before the intersection, drivers could maneuver their vehicles into the left lane of two westbound lanes.
On the date of the collision, Ms. Snelling was driving west on Highway 40 at 3:30 p.m. As Ms. Snelling neared the intersection of Highways 40 and AA, four cars in front of her were stopped, requiring her to stop also. At the point where Highway 40 changes from a one lane westbound highway to a two lane westbound highway, Ms. Snelling moved her vehicle from the right lane to the left, or inside, westbound lane. Conflicting evidence was presented regarding whether Ms. Snelling crossed the diagonal yellow lines separating westbound and eastbound traffic in order to enter the inside westbound lane.
As Ms. Snelling entered the inside westbound lane, Mr. Gress was stopped at a stop sign attempting to make a left hand turn into the eastbound lane of Highway 40 from the K-Mart parking lot, located on the north side of Highway 40. Another driver traveling west on Highway 40 stopped just east of the parking lot driveway where Mr. Gress was waiting and gestured to Mr. Gress to turn left in front of him and to enter the eastbound lane of Highway 40. Mr. Gress then proceeded to drive his vehicle onto Highway 40. At this point, Mr. Gress noticed Ms. Snelling's car approaching him. Mr. Gress stopped in order to avoid a collision. At the same time, Ms. Snelling saw Mr. Gress's car and swerved and accelerated to avoid the collision. Mr. Gress's car and Ms. Snelling's car collided on the inside westbound lane of Highway 40.
Ms. Snelling sought medical treatment from her family physician, Dr. Keith Morris, following the accident, for pain in the index finger of her left hand. Dr. Morris placed a splint on Ms. Snelling's finger. Later that evening, Ms. Snelling began experiencing pain in her neck, lower back and head. Ms. Snelling worked the following day, but co-workers noticed she was in pain and unable to move freely. Ms. Snelling was unable to reach over her head, could not lift objects, push or bend without pain and could not turn her head quickly without becoming dizzy.
Ms. Snelling sought medical treatment for her neck and lower back on May 1, 1992, at St. Mary's Hospital Outpatient Services in Blue Springs. Ms. Snelling was noted to have tenderness over her C-spine, muscle soreness of the left lumbar and tenderness of the left index finger. Within one week of the accident, Ms. Snelling began seeing a chiropractor, Dr. Morgan, who treated her throughout the summer of 1992. Dr. Morgan ordered an MRI in September, 1992.
Ms. Snelling also began seeing Dr. Stuckmeyer in August, 1992, for complaints of "cervical neck discomfort with frequent headache and occasional radiation of pain to the upper extremities." Dr. Stuckmeyer diagnosed Ms. Snelling with cervical strain and placed her on an exercise program. When Ms. Snelling's symptoms did not respond to the conservative modalities, Dr. Stuckmeyer suggested a CT scan of her cervical spine and an EMG of her upper extremities.
Dr. Morgan referred Ms. Snelling to Dr. Jenny, a neurosurgeon, in September, 1992. Dr. Jenny diagnosed Ms. Snelling with cervical strain with possible radiculopathy or nerve root injury and recommended home traction. Dr. Jenny recommended cortisone shots in January, 1993. Dr. Jenny also sent Ms. Snelling to physical therapy consisting of isometric neck exercises, shoulder girdle exercises, flexibility exercises and stretching. Ms. Snelling then stopped seeing Dr. Jenny and returned to Dr. Morgan.
Ms. Snelling began seeing Dr. Ketcherside, a neurosurgeon, in May, 1993. Dr. Ketcherside relied on Dr. Jenny's medical history, the subjective complaints made by Ms. Snelling and his objective observations. Ms. Snelling complained to Dr. Ketcherside of pain in her neck radiating down into both index fingers and numbness in both hands and the ends of her fingers. Dr. Ketcherside testified that no changes in the bony structure of Ms. Snelling's neck were observed comparing x-rays taken in May, 1991, and those taken after the accident. Ms. Snelling's MRI showed a bulging disk, which, in Dr. Ketcherside's opinion, was a result of "normal wear and tear." Dr. Ketcherside diagnosed Ms. Snelling with a cervical strain and a nerve root contusion. Dr. Ketcherside testified by outside deposition that these injuries generally heal between six weeks to six months. Dr. Ketcherside also noted Ms. Snelling had sensory deficits in the middle finger as well as left biceps weakness consistent with C7 nerve root damage. At Dr. Ketcherside's direction, Ms. Snelling attended physical therapy sessions which involved exercise programs, heat or ultrasound and occasionally electric stimulation or cold pack application. Dr. Ketcherside opined that Ms. Snelling's injuries were, to a reasonable degree of medical certainty, cased by the automobile collision.
Dr. Ketcherside restricted Ms. Snelling's work activity. His restrictions included Ms. Snelling not working more than forty hours a week, not working more than eight hours a day, not performing "overhead work," and not lifting more than forty pounds. Dr. Ketcherside advised Ms. Snelling's employer that she would have some residual permanent impairment or a functional loss of approximately ten percent. Ms. Snelling was able to perform all her work duties by January, 1994.
Ms. Snelling again saw Dr. Ketcherside in February, 1996. As a result of this evaluation, Dr. Ketcherside opined, to a reasonable degree of medical certainty, that Ms. Snelling would have some symptoms for the rest of her life. While Ms. Snelling continued to complain of symptoms, Dr. Ketcherside testified that in 1994, Ms. Snelling's objective tests were normal. As of 1996, Dr. Ketcherside did not believe that Ms. Snelling required work restrictions.
Ms. Snelling began seeing Dr. Hoech, a board certified anesthesiologist specializing in acute pain management and behavior modification in August, 1996. When Dr. Hoech's assistant, Dr. Hagen, examined Ms. Snelling in July, 1996, he noted she was suffering from neck and left shoulder pain. Dr. Hagen performed a cervical epidural steroid injection to reduce the inflammation of the cervical nerve and to decrease Ms. Snelling's symptoms. Ms. Snelling's cervical radiculopathy improved by November, 1996, after administration of an epidural block and myofascial point injections. Dr. Hoech testified by deposition that because Ms. Snelling's left shoulder was higher than her right shoulder, she had suffered a nerve injury that would be hard to discover or measure by EMG. Dr. Hoech also testified in his deposition that he believed Ms. Snelling suffered a "wing scapula" which occurs when an individual uses her arm to lift or press and the scapula is not kept in close proximity to the rib cage which causes the rib case to go "up and out." Dr. Hoech testified that the automobile collision was the type of collision that could cause injury to either the spinal accessory nerve or the long-thoracic nerve which could result in a wing scapula. Dr. Hoech opined that Ms. Snelling's injuries were caused by the automobile collision. Dr. Hoech testified that an injury to Ms. Snelling's left shoulder in 1990 involved the biceps tendon and deltoid muscle which were separate and distinct muscles from those injured in the 1992 automobile collision. Dr. Hoech also distinguished between the nerves involved in the pre-collision injury and the injuries resulting from the collision. Dr. Hoech finally testified that the wing scapula had "pretty much corrected itself" and that Ms. Snelling was within the limits of asymmetry that many people have between the left and right sides of their bodies.
Ms. Snelling received treatment from Dr. Truitt Swaim, a board-certified orthopedic surgeon, in August, 1996. Dr. Swaim diagnosed Ms. Snelling with clinical cervical pain with radicular symptoms. Dr. Swaim testified by deposition that he did not have any objective evidence that Ms. Snelling had a permanent disability. Dr. Swaim testified, however, that because Ms. Snelling still had symptoms four years after the automobile accident that she was likely to continue having symptoms. Dr. Swaim did not believe Ms. Snelling had a wing scapula, but acknowledged that he made his diagnosis without "a full workup." Dr. Swaim also acknowledged that Ms. Snelling had one scapula that set higher "based on muscle spasm of the trapezius muscle." Dr. Swaim testified that if an individual's cervical spine is injured and the person suffers a whiplash-like injury that repetitive strain, such as lifting, pushing and pulling, would produce more pain.
At trial, medical evidence was also presented regarding work-related injuries to Ms. Snelling's neck and shoulder. Ms. Snelling injured her lower back in 1985 and underwent ten chiropractic treatments. Ms. Snelling again injured her lower back in 1988 and sought treatment for one month before resuming her regular work schedule. Ms. Snelling "pulled" her left biceps muscle in December, 1990. Ms. Snelling complained of biceps tendinitis and left shoulder pain. Ms. Snelling was released from further treatment in January, 1991, for the biceps muscle injury. Ms. Snelling sought further treatment in February, 1991, for this injury from Dr. Morris who diagnosed Ms. Snelling's biceps and deltoid muscle tenderness as "over-use syndrome." After undergoing physical therapy and strengthening exercises, Ms. Snelling's discomfort was resolved by the summer of 1991. Ms. Snelling sought treatment from Dr. Morgan in May, 1991, for neck pain and lower back pain. Ms. Snelling informed her physical therapist in October, 1992, that she was having headaches and had strained her back while opening a box at work. Ms. Snelling also complained she hurt her neck and shoulder in October, 1993, when making and lifting boxes at work. Ms. Snelling suffered a thoracic spine sprain on November 1, 1993, causing her middle back mild discomfort. Following each of these injuries, Ms. Snelling was able to resume her normal activities and work routine including working overtime.
At the close of the evidence, the jury found in favor of Ms. Snelling. The jury assessed her damages at $5,000.00 and determined that Ms. Snelling was thirty percent at fault. Accordingly, the trial judge reduced her recovery to $3,500.00. Ms. Snelling appealed.
I. MS. SNELLING'S PRIOR AND SUBSEQUENT WORK-RELATED INJURIES
As her first point on appeal, Ms. Snelling argues that the trial court erred in refusing to submit a proposed jury instruction withdrawing from the jury's consideration Ms. Snelling's prior and subsequent work-related injuries. Ms. Snelling argues that her prior and subsequent injuries were unrelated to the injuries she sustained in the April 22, 1992 automobile collision. Ms. Snelling further argues that the trial court erred in giving Instruction No. 10, the Damage Instruction, which limited her damages to those sustained as a "direct result" of the accident when the Verdict Director, Instruction No. 6, allowed a percentage of fault to be assessed to Mr. Gress when Mr. Gress's negligence "directly caused or directly contributed to cause damage to Plaintiff," thus resulting in conflicting jury instructions.
The purpose and use of withdrawal instructions is to avoid misleading a jury on a specious issue, and the giving or refusing of these instructions is within the discretion of the judge. Bradley v. Browning-Ferris Industries, Inc. , 779 S.W.2d 760, 765 (Mo.App. 1989). An abuse of the trial court's discretion is reviewed to determine whether the ruling is clearly against the logic of the circumstances and so arbitrary and unreasonable that it shocks one's sense of justice, thus indicating a lack of careful consideration. Shady Valley Park Pool, Inc. v. Fred Weber, Inc. , 913 S.W.2d 28, 37 (Mo.App. 1995). Ms. Snelling offered, and the trial court refused, Instruction B, a withdrawal instruction, which stated:
The issue of Plaintiff's injuries of December 5, 1990, and October 29, 1993, is withdrawn from the case and you are not to consider such issue in arriving at your verdict.
The trial court did not abuse its discretion in refusing to submit the withdrawal instruction for the work-related injuries Ms. Snelling experienced on December 5, 1990, and October 29, 1993. The nature and extent of Ms. Snelling's injuries were contested issues. Mr. Gress introduced evidence of Ms. Snelling's prior and subsequent work-related injuries to show that Ms. Snelling had sustained prior injury to those parts of her body that she claimed were injured in the automobile collision. In an action for personal injuries, the health and physical condition of the injured person both prior and subsequent to the occurrence is material. Friese v. Mallon , 940 S.W.2d 37, 42 (Mo.App. 1997). Any competent evidence tending to prove or disprove the nature and extent of the alleged injuries received is admissible. Id. Whether the injuries complained of by Ms. Snelling were causally connected to the automobile collision was, therefore, a material issue. Because her work-related injuries prior and subsequent to the collision affected the same parts of her body that she claimed were injured in the automobile collision, evidence pertaining to her work related injuries was admissible.
Mr. Gress's failure to present evidence refuting the expert testimony offered by Ms. Snelling in support of her claims does not affect the admissibility of evidence pertaining to Ms. Snelling's work-related injuries. In Eickmann v. St. Louis Public Service Co. , 323 S.W.2d 802 (Mo. 1959), the plaintiff claimed that she had injured "practically my whole body" when the bus in which she was riding as a passenger struck the rear of another bus. Id. at 805. The plaintiff had been involved in accidents on at least three other occasions before the accident at issue. Id. at 806. The plaintiff's medical expert testified that a "major part" of the plaintiff's injuries were caused by the bus collision. Id. The court permitted the defendant to elicit on cross-examination of the plaintiff, evidence pertaining to her prior accidents. Id. The court held that the trial court did not abuse its discretion in allowing the evidence. Id. It reasoned that "the prior injuries were not so remote as to preclude their continued existence especially in view of the nature of the injuries presently claimed. The defendant is aided by the presumption that a physical or mental condition shown to exist at one time continues until a change is shown." Id. at 807.
Here, too, Ms. Snelling's injuries prior and subsequent to the automobile collision were relevant in proving the extent of the injuries incurred as a result of the collision. Like the plaintiff in Eickmann , Ms. Snelling had been involved in several accidents before the automobile collision with Mr. Gress. Ms. Snelling's prior work-related injuries affected the same parts of her body that she claimed were injured in the collision just as the plaintiff's prior injuries in Eickmann affected the same parts of her body she claimed were injured in the collision with the defendant. Like the plaintiff in Eickmann , the injuries Ms. Snelling sustained were not so remote in time as to preclude their continued existence. While Ms. Snelling presented expert testimony that her injuries were caused by the automobile collision rather than her work-related injuries, that issue was not conclusively established. For example, Dr. Swaim testified that the repetitive lifting, pushing and pulling that Ms. Snelling was required to perform at work could cause pain to the same areas that Ms. Snelling complained were injured in the automobile collision. The trial court, therefore, did not abuse its discretion in refusing to submit the withdrawal instruction.
Ms. Snelling next argues that the trial court erred in refusing to submit her proposed damage instruction and instead utilized Instruction No. 10. Ms. Snelling argues that the trial court erred by refusing to use her proposed damage instruction because the language used in the verdict director conflicted with the damage instruction given, thereby confusing the jury. The verdict director, Instruction No. 6, MAI 37.01, stated:
In your verdict you must assess a percentage of fault of Defendant whether or not Plaintiff was partly at fault, if you believe:
First, either
Defendant failed to keep a careful lookout, or
Defendant failed to yield the right-of-way, and
Second, Defendant in any one or more of the respects submitted in Paragraph First, was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage to Plaintiff.
The phrase "yield the right-of-way," as used in this instruction means the driver entering the roadway from a driveway is required to yield to another vehicle approaching on the highway.
(emphasis added). Ms. Snelling argues the submission of the verdict director containing the "directly caused or directly contributed to cause" language confused the jury because it conflicted with the "as a direct result" language contained in the damage instruction, Instruction No. 10, MAI 37.03, which stated:
If you assess a percentage of fault to Defendant, then, disregarding any fault on the part of Plaintiff, you must determine the total amount of Plaintiff's damages to be such sum as will fairly and justly compensate Plaintiff for any damages you believe she sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence.
In determining the total amount of Plaintiff's damages you must not reduce such damages by any percentage of fault you may assess to Plaintiff. The judge will compute Plaintiff's recovery by reducing the amount you find as Plaintiff's total damages by any percentage of fault you assess to Plaintiff.
(emphasis added). Ms. Snelling's proposed damage instruction would have substituted the "as a direct result" language with the "directly caused or directly contributed to cause" language utilized in the verdict director. Committee Note 3 of the Missouri Supreme Court Committee on Jury Instructions states that the language "directly caused" or "directly contributed to cause" "may be more appropriate" in a "more complex comparative fault case." Note 3 does not define what constitutes a "more complex comparative fault case." MAI 5th Edition (1996) 37.03, p. 714.
Ms. Snelling's argument that the "directly caused or directly contributed to cause" language utilized in the damage instruction confused the jury is without merit. The "as a direct result" language utilized in the damage instruction was unambiguous and plainly allowed the jury to compensate Ms. Snelling for all injuries that she sustained as a direct result of the automobile collision. Although the verdict director utilized different language than the damage instruction, that clarity of the instructions was not impeded. The verdict director focused on whether the jury believed Mr. Gress was at fault in the automobile accident while the damage instruction focused on the extent of Ms. Snelling's injury incurred as a result of Mr. Gress's negligence. No potential for jury confusion resulted from submission of these instructions. The trial court, therefore, did not err in refusing Ms. Snelling's proposed damage instruction. Point one is denied.
II. MS. SNELLING'S COMPARATIVE FAULT FOR FAILURE TO KEEP A CAREFUL LOOKOUT
As her second point on appeal, Ms. Snelling argues that the trial court erred by denying her motion for a directed verdict and allowing the jury to consider her alleged comparative fault for failure to keep a careful lookout where Mr. Gress failed to produce evidence supporting a claim of comparative negligence. Ms. Snelling specifically argues that her statement that she did not stare only at Mr. Gress's car when approaching the intersection where the collision occurred did not support a finding of comparative fault for failure to keep a careful lookout and that Mr. Gress's failure to produce evidence establishing the time, distance or means by which she could have avoided the collision prevented a finding that she was comparatively negligent.
A directed verdict is a drastic remedy and should be granted only where reasonable and honest persons could not differ on a correct disposition of the case. Baron v. Lerman , 719 S.W.2d 72, 76 (Mo.App. 1986); Jarrell v. Fort Worth Steel Mfg. Co. , 666 S.W.2d 828, 833 (Mo.App. 1984). Ms. Snelling, as the proponent of the negligence action, has the burden of proof, and a verdict will not ordinarily be directed in favor of the party having the final burden of proof. Baron , 719 S.W.2d at 76; Medlock v. Farmers' State Bank of Texas County , 696 S.W.2d 873, 881 (Mo.App. 1985); Scott v. Thornton , 484 S.W.2d 312, 314 (Mo. 1972).
A comparative fault instruction must be supported by substantial evidence. Business Men's Assur. Co. of America v. Graham , 891 S.W.2d 438, 448 (Mo.App. 1994). "Substantial evidence is that which, if true, has probative force upon the issues and from which the trier of facts can reasonably decide a case." Id. In examining whether substantial evidence existed, the evidence must be viewed in the light most favorable to the party offering the instruction. Id. As to the particular instruction on failure to keep a careful lookout, there must be substantial evidence from which the jury could find that in exercising the highest degree of care, Ms. Snelling could have seen the other vehicle in time to have taken effective precautionary action to avoid the collision, had she been keeping a careful lookout. Lewis v. State Sec. Ins. Co. , 718 S.W.2d 539, 541 (Mo.App. 1986); Woten v. Day , 684 S.W.2d 901, 902 (Mo.App. 1985); Wellhausen v. Harris , 654 S.W.2d 101, 103 (Mo.App. 1983). "What constitutes negligence in failing to keep a lookout in a particular direction at a particular time or place and whether a driver who has looked has seen all that he should is usually a fact question." Wellhausen , 654 S.W.2d at 104 (quoting Dorrell v. Moore , 504 S.W.2d 174, 178-79 (Mo.App. 1973)). Additionally, the submission or refusal to submit a tendered jury instruction is within the trial court's discretion. State v. Smith , 949 S.W.2d 901, 905 (Mo.App. 1997); State v. Leisure , 810 S.W.2d 560, 574 (Mo.App. 1991).
Substantial evidence supports the trial court's decision to submit a jury instruction on failure to keep a careful lookout. Viewing the evidence in the light most favorable to Mr. Gress, the evidence established that Ms. Snelling was traveling westbound on Highway 40 while Mr. Gress was stopped at the stop sign waiting to turn left onto Highway 40. Ms. Snelling testified that no obstructions were in her line of sight that would have prevented her from seeing Mr. Gress turn left onto Highway 40. Ms. Snelling further testified that she had a period of seven to eight seconds between when she first saw Mr. Gress before the collision occurred and that during that time period she only glanced in Mr. Gress's direction one time. Most importantly, Ms. Snelling testified that had she been watching Mr. Gress, she would have seen him leave the stop sign and enter Highway 40 and would have had the opportunity to swerve and avoid hitting him. Because Ms. Snelling testified that she was not watching Mr. Gress's car and that, had she been doing so, she would have had ample opportunity to avoid the collision, substantial evidence existed from which the jury could have found that had Ms. Snelling been exercising the highest degree of care and keeping a careful lookout, Ms. Snelling could have seen Mr. Gress's vehicle in time to have taken effective precautionary action to avoid the collision. The trial court, therefore, did not abuse its discretion in submitting the failure to keep a careful lookout jury instruction. Point two is denied.
III. THE ADMISSION OF DR. KETCHERSIDE'S LETTER
As her third point on appeal, Ms. Snelling argues that the trial court erred by denying her motion for a new trial where the trial court permitted Mr. Gress to cross-examine her with a letter written by her treating physician, Dr. Ketcherside, and where the letter was hearsay and did not qualify as competent evidence under the business records exception to the hearsay rule.
Hearsay is an out-of-court statement made by someone not before the court that is offered to prove the truth of the matter asserted. State v. Larson , 941 S.W.2d 847, 854 (Mo.App. 1997); Medicine Shoppe Int'l, Inc. v. Mehra , 882 S.W.2d 709, 712 (Mo.App. 1994). Hearsay evidence is not admissible as evidence at trial absent exception. Larson , 941 S.W.2d at 854 . The business records exception to the hearsay rule provides that a record of an act, condition, or event is competent evidence:
(1) if the custodian or other qualified witness testifies to its identity and the mode of its preparation; (2) if it was made in the regular course of business, at or near the time of the act, condition or event; and, (3) if in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
Id. (quoting § 490.680, RSMo 1994).
The admission of evidence claimed to be hearsay is reversible error only if the complaining party is prejudiced. Dunn v. St. Louis-San Francisco Ry. Co. , 621 S.W.2d 245, 252 (Mo. banc 1981), cert. denied sub nom. Burlington Northern Railroad Co. v. Dunn , 454 U.S. 1154 (1982); Howe v. ALD Services, Inc. , 941 S.W.2d 645, 654-55 (Mo.App. 1997). The complaining party cannot be prejudiced if that party offers evidence to the same effect as the challenged evidence, or if the challenged evidence is merely cumulative to other admitted evidence of like tenor. Id. The burden is on the complaining party to establish prejudice. Nettie's Flower Garden v. SIS, Inc. , 869 S.W.2d 226, 230 (Mo.App. 1993).
Ms. Snelling argues that the admission of the following excerpts from Dr. Ketcherside's letter during cross-examination was error because the letter was hearsay and its admission was prejudicial:
Q: Mrs. Snelling, before the break we were discussing a letter dated March 29, 1994 from Dr. Joseph Ketcherside to your attorney, Robert Buckley, that's contained in his file, exhibit number 61 as well as deposition exhibit number 1, and let me see if I read this correct. Does Dr. Ketcherside state in this letter of March 1994, "I do not believe that she — referring to you — I do not believe that she sustained any serious permanent injury in this accident. She does still have some residual pain but her neurological exam was entirely normal and all of her x-rays were normal." Do I read that correct?
A: Yes.
Q: "I do not believe that the questionable bulging identified on the MRI represented any disc injury but rather is the normal appearance of a cervical disc for a person her age. A normal CT scan and myelogram would further confirm that this is not a traumatic injury. I do not believe that she has any greater risk of a herniated disc in the future when compared to any other person. I do not believe that further medical treatment will be required in the future for these injuries. I released her to return to work and she is currently working in her usual job full-time." Did I read that correctly?
A: Yes.
Q: All right. Did Dr. Ketcherside also make those statements to you that's contained in his letter to your attorney in 1994, did he tell you those things?
A: Yes.
Whether the letter is hearsay need not be determined because the admission of this evidence, even if hearsay, could not result in reversible error. Before the admission of Dr. Ketcherside's letter, Ms. Snelling offered into evidence her hospital records. As Ms. Snelling concedes, the hospital records contained identical information as that offered through Dr. Ketcherside's letter. Additionally, Dr. Ketcherside's deposition testimony, introduced at trial, relayed substantially similar information now objected to by Ms. Snelling as prejudicial. For example, in Dr. Ketcherside's letter, he stated that Ms. Snelling's neurological exam was normal. In his deposition, Dr. Ketcherside testified that while Ms. Snelling's neurological exam was not "totally normal" when he initially examined her, when he re-examined Ms. Snelling "her strength was back to normal. She had a little decreased pin prick, but other than that, her exam was normal." Dr. Ketcherside's statements in the letter were, therefore, cumulative of his deposition testimony. Because Ms. Snelling's medical records and the deposition testimony of Dr. Ketcherside were introduced into evidence by Ms. Snelling and have the same effect as Dr. Ketcherside's letter and the medical records and are cumulative of the information contained in Dr. Ketcherside's letter, Ms. Snelling was not prejudiced by the admission of the letter. Dunn , 621 S.W.2d at 252 ; Howe , 941 S.W.2d at 654-55 . Because the admission of Dr. Ketcherside's letter did not prejudice Ms. Snelling, no reversible error occurred. Point three is denied.
IV. THE TESTIMONY REGARDING SECONDARY GAIN
As her fourth point on appeal, Ms. Snelling argues that the trial court erred by admitting the deposition testimony of Dr. Ketcherside discussing the issue of "secondary gain" where the testimony was irrelevant, prejudicial, without foundation, was an attempt to discredit Ms. Snelling for seeking legal redress for her injuries and was an improper attack on her credibility.
The following testimony of Dr. Ketcherside was read to the jury with the italicized portion representing testimony deleted by the trial court:
Q: Are you familiar with the term "secondary gain?"
A: Certainly.
Q: "Secondary gain" is defined as "Conscious or subconscious perpetuation of symptoms in the absence of organic origin for the purpose of receiving secondary gain in the form of money avoidance or sympathy for family or doctors"; isn't that right?
[Objection by counsel]
A: Good definition. Well said. That's —
Q: Thank you.
A: That's exactly what I learned.
Q: Isn't it true that secondary gain is a medically recognized phenomena?
A: Certainly.
Q: Isn't it true that when a patient doesn't heal within a normal course of healing that is consistent with secondary gain?
A: That's one of the things. A missed diagnosis is another of the things which is why we did a myelogram and rechecked her and so forth. That's also a possibility, but as we know, these were normal.
Q: Yeah. You didn't miss the diagnosis, though; right?
A: No, I think we hit the diagnosis, but when we were talking earlier about why would we do these other tests this much later, one reason is you may have missed the diagnosis in the first place, and — but you're right, that's another reason why symptoms may linger.
Q: On February 20th, 1996, you noted that Plaintiff had poor range of motion in the neck in all directions?
A: Yes.
Q: Now, isn't that inconsistent with your previous findings two years before when you state in your records that she had good range of motion?
A: Yes.
Q: And on February 20th, 1996, you also noted Plaintiff's range of motion was not quite as good, although she didn't appear to have muscle spasm that would prevent movement to the degree that she said was restricted; right?
A: Right.
Q: Now aren't these inconsistencies also consistent with secondary gain?
[Objection by counsel]
A: That's one thing they are consistent with, sure.
(emphasis added). Dr. Ketcherside then testified further:
Q: All right. In those instances where it does not occur and where the problems continue on, what is it about the injury that causes that — the continuation of those complaints and symptoms?
A: I don't know. I've got lots of books up there and they don't know. I really don't know what it is that's different. They may look the same. I'm sure — I think the correct answer is there are a lot of different things that make different people's injuries last. I'm sure secondary gain is one; I'm sure that conscious malingering is one, and I certainly don't see anything that suggests that in this instance. I'm just giving you ideas. I think a missed diagnosis is one. I've seen patients who I felt had a different problem and we were barking up the wrong tree and that's why it lasted longer, and then I've seen people where I think everything has been done appropriately and they just haven't gotten well, and I don't know why that is, and there are whole books and articles trying to explain it.
Ms. Snelling argues that the testimony of Dr. Ketcherside regarding the theory of secondary gain should have been excluded because it was irrelevant and prejudicial. Relevant and material evidence may not be excluded solely because it tends to prejudice the jury against a party. Brown v. Hamid , 856 S.W.2d 51, 56 (Mo. banc 1993); Johnson v. Creative Restaurant Management , 904 S.W.2d 455, 459 (Mo.App. 1995) . The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence. Id. The trial court's ruling on admissibility of evidence will not be disturbed, absent an abuse of discretion. Id.
The trial court did not abuse its discretion in admitting the deposition testimony of Dr. Ketcherside regarding the theory of secondary gain. A material issue at trial was the nature and extent of Ms. Snelling's injuries. Dr. Ketcherside's testimony that Ms. Snelling's injuries were consistent with the theory of secondary gain related directly to the nature and extent of Ms. Snelling's injuries because it tended to disprove that her claimed injuries were causally connected to the 1992 automobile collision. Because the origin of Ms. Snelling's injuries was a material issue at trial and Dr. Ketcherside's testimony regarding whether Ms. Snelling's injuries were consistent with secondary gain addressed the nature and extent of her injuries, his testimony was both relevant and admissible. While the admission of the testimony regarding secondary gain may have caused prejudice to Ms. Snelling in that it undermined the credibility of her argument that her injuries were solely caused by the 1992 automobile collision with Mr. Gress, as noted by the court in Brown , relevant and material evidence may not be excluded solely because it tends to prejudice the jury against a party. Brown , 856 S.W.2d at 56 . The trial court, therefore, did not err in allowing the testimony of Dr. Ketcherside.
Ms. Snelling argues, however, that under Yingling v. Hartwig , 925 S.W.2d 952 (Mo.App. 1996), the admission of the deposition testimony of Dr. Ketcherside relating to the phenomenon of secondary gain constitutes reversible error because it was irrelevant, prejudicial and an improper attempt to discredit her for exercising her right to utilize the judicial system to seek recovery for her injuries. In Yingling , the court found that the admission of a doctor's testimony that persons involved in litigation have subjective complaints longer than persons not involved in litigation was error warranting a new trial. Id. at 955. The court reasoned that the doctor's testimony regarding "people not in litigation" and "people who are in litigation" were "generalities, without indication of similarity with or application to [the plaintiff]." Id. at 956. The court also held that the doctor's testimony was an improper attempt to discredit the plaintiffs for exercising their right to utilize the judicial system to seek recovery for their injuries. Id. The court finally noted that even if the doctor's testimony was logically relevant, any probative value was far outweighed by its prejudicial effect on the plaintiffs. Id. The court stated:
It is true that the sole fact that evidence is logically relevant does not require its admission; the evidence must also have some probative force over and above logical relevancy . . . If evidence pertaining to collateral matters brings into a case new controversial matters which would result in confusion of issues, constitute unfair surprise, or cause prejudice wholly disproportionate to the value and usefulness of the offered evidence, it should be excluded.
Id. (quoting Conley v. Kaney , 250 S.W.2d 350, 353 (Mo. 1952)). Applying this principle, the court held that even if the doctor's testimony regarding "people not in litigation" and "people who are in litigation" were relevant, that because its probative value was far outweighed by its prejudicial effect to the plaintiff, exclusion was nonetheless warranted. Id. The court reasoned that the doctor's testimony was "in essence, a comment on a plaintiff's credibility; a statement that plaintiffs generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages." Id. Therefore, the trial court reversed and remanded the case for a new trial. Id.
Ms. Snelling's analogy to Yingling is unpersuasive. In Yingling , the trial court failed to delete the doctor's testimony regarding the general behavior of litigants. Here, in contrast to Yingling , the trial court deleted all general references by Dr. Ketcherside regarding the behavior of litigants, including the definition of secondary gain. More importantly, in Yingling , no evidence was presented that connected the plaintiff to the doctor's testimony that people in litigation have subjective complaints in order to further their lawsuits and increase their damages. Here, in contrast to Yingling , evidence existed supporting Dr. Ketcherside's testimony regarding the theory of secondary gain. Dr. Ketcherside testified that Ms. Snelling did not heal within the normal course of time for the injuries she sustained; had a decreased range of motion without muscle spasm; and had a good range of motion in her neck in 1994 but two years later had poor range of motion, all of which are symptoms consistent with secondary gain. In contrast to the doctor's testimony in Yingling , therefore, Dr. Ketcherside's testimony regarding secondary gain established similarity with and application to Ms. Snelling and was, thus, relevant and admissible.
Ms. Snelling's argument that exclusion was warranted under Yingling due to the prejudicial effect of Dr. Ketcherside's testimony likewise fails. The Yingling court found prejudice based on the fact that the doctor's statements regarding the behavior of people in litigation was not shown to relate to the plaintiff in any way. Here, however, the trial court excluded Dr. Ketcherside's general comments regarding the behavior of people in litigation and excluded the definition of secondary gain. Additionally, in contrast to Yingling , no disparaging remarks were made regarding Ms. Snelling's exercise of her legal right to seek redress for her injuries. The trial court, therefore, did not err in admitting the testimony of Dr. Ketcherside regarding the theory of secondary gain. Point four is denied.
V. THE ADMISSION OF DR. SWAIM'S DEPOSITION TESTIMONY
As her final point on appeal, Ms. Snelling argues that the trial court erred by striking portions of Dr. Truitt Swaim's deposition testimony because the jury heard an incomplete question and answer that was taken out of context from the question and answer presented during the deposition. Ms. Snelling objected to the following question and answer from Dr. Swaim's deposition that was read to the jury without the italicized portion:
Q: In other words, her condition is going to be permanent, she is not likely to get better tomorrow or the next day, she is likely to have this condition for the remainder of her life?
[Objection by Ms. Snelling's counsel]
A: Well, she has had it for quite a while, a long time. Now you are kind of forcing me to say things that I don't know you necessarily want to hear. You know, I don't have any objective evidence that she's got some sort of permanent disability, you know. So that when you are in this situation, she still had symptoms, likelihood she is still going to have symptoms. Now I don't know, you know, you have to determine what's the causation of the symptoms. Do you understand — I'm sure you understand what I'm saying. So the likelihood is she's going to continue to have symptoms in regards — if she has had them for four years.
Q: And that's what I'm asking you.
A: Right, that's true.
Q: I'm not asking you to make any type of disability determination.
A: Right. Well, people frequently get better or their symptoms seem to improve after the case is over. You know, I think that's pretty well documented. But I don't know that in her situation positively one way or another whether she is going to get better or not but you understand. If you are dealing with soft tissue injuries, that's different than dealing with somebody who has a — you know, has a disc herniation and pinched nerve or has a — definitely has a winged scapula from a nerve injury. That's a little different than the subjective nature of this case.
(emphasis added). Ms. Snelling argues that under Moslander v. Dayton Tire Rubber Co. , 628 S.W.2d 899 (Mo.App. 1981), the trial court's failure to delete Dr. Swaim's entire answer to the last question rather than deleting only the italicized portion constitutes reversible error.
In Moslander , the plaintiffs in a products liability action contended that a defective tire caused an automobile collision in which the plaintiff sustained injuries. Id. at 903. At trial, the plaintiffs read to the jury a hypothetical question and answer of an expert witness taken during his deposition concerning the causation of the accident. Id. The trial judge deleted from the question by plaintiffs at trial certain facts included in the question at the deposition. Id. The court stated:
As a matter of logic it would seem reasonable to conclude that an answer to a hypothetical question, premised upon certain facts, would not necessarily be the same if some of the important or essential facts were deleted from the question. If that occurs the answer given is to a different question than that presented to the jury.
Id. Because the defendant failed to object to the question at trial, however, the court did not determine whether the deletion of the facts from the question constituted reversible error. Id.
Contrary to Ms. Snelling's contention, Moslander does not stand for the proposition that the deletion of portions of testimony constitutes reversible error. In Moslander , while the court suggested that the deletion of facts from the hypothetical question was improper, the court did not hold that this was reversible error. The court declined to determine whether reversible error occurred because the defendant had failed to preserve the question for appellate review. Additionally, the deletion of testimony in this case differs substantially from the question at issue in Moslander . In Moslander , the deleted facts in the question were dispositive in understanding the answer to that question. Here, in contrast, no part of the question was deleted. While a portion of the answer was deleted, the deleted portion was not necessary to understanding Dr. Swaim's answer. Furthermore, the deletion of the reference by Dr. Swaim to the behavior of persons in litigation was proper. See Yingling , 925 S.W.2d at 955-57 (holding that doctor's statements regarding "people who are in litigation" were generalities without indication of similarity with or application to plaintiff, were not logically relevant to proving the extent of plaintiff's injuries, were an improper attempt to discredit plaintiff for exercising right to utilize judicial system to seek recovery for her injuries and any probative value far outweighed by prejudicial effect and, thus, admission of statements constituted reversible error). Because the deletion of the reference to people in litigation was proper under Yingling and did not alter the context of Dr. Swaim's answer, the trial court did not err in submitting the remainder of Dr. Swaim's answer to the jury. Point five is denied.
The judgment of the trial court is affirmed.
All concur