Missouri Case Law
LINDQUIST v. SCOTT RADIOLOGICAL GROUP, 168 S.W.3d 635 (Mo.App.E.D. 2005) Karen LINDQUIST, as the Personal Representative of the Estate of Michael Lindquist, Deceased, Appellant, v. SCOTT RADIOLOGICAL GROUP, INC., Mid-America Orthopedic Surgery, Inc., and Barnes-Jewish St. Peters Hospital, Respondent. No. ED 84085. Missouri Court of Appeals, Eastern District. May 31, 2005. Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005. Application for Transfer Denied August 30, 2005.
Appeal from the Circuit Court of the City of St. Louis, Julian Bush, J. Page 636
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 637
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 638
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 639
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 640
James E. Hollverson, Jr., Clayton, MO, for appellant.
Donald P. Myre, Robyn G. Fox, Paul N. Venker, St. Louis, MO, for respondents.
PATRICIA L. COHEN, Presiding Judge.
Introduction
Karen Lindquist (“Plaintiff”), the Personal Representative
of the Estate of Michael Lindquist, appeals from a judgment
of the Circuit Court of the City of St. Louis, which
granted: (1) a new trial to Mid-America Orthopaedic Surgery
(“Mid-America”) and Barnes-Jewish St. Peters Hospital
(“Barnes-Jewish”); and (2) judgment notwithstanding the
verdict (“JNOV”) to Scott Radiological Group (“Scott
Radiological”) in connection with Mr. Lindquist’s claims
for personal injury as a result of medical negligence.
Barnes-Jewish also contends that the trial court erred in
denying its motions for directed verdict, as well as its
Motion for JNOV, and on the grounds that Plaintiff failed
to adduce evidence of agency sufficient to impose
vicarious liability. We affirm in part and reverse and
remand in part.
Background
In March 1999, at age 51, Michael Lindquist developed pain
between his shoulder blades. In an attempt to control the
pain, Mr. Lindquist took over-the-counter medication.
However, the pain worsened and, in early April 1999, Mr.
Lindquist saw his family physician, Dr. Farrell. After an
examination, Dr. Farrell diagnosed Mr. Lindquist as having
“thoracic somatic dysfunction,” administered osteopathic
manipulation and prescribed medication.
When the manipulation and medication did not alleviate the
pain, Mr. Lindquist sought a second opinion from Dr. Weis,
an orthopedic surgeon. The intake nurse’s records from Mr.
Lindquist’s April 20, 1999 visit indicate that he told the
intake nurse that he was experiencing “sharp pain,
squeezing pressure pain, in his upper back, right side, his
mid back on the right side for approximately one week . . .
[and that] standing up and moving around is best position.”
When asked if he had done anything to injure his back, Mr.
Lindquist explained that he washed his truck and picked up
a couch. After examining Mr. Lindquist, Dr. Weis diagnosed
him with “thoracal lumbar sprain with exacerbation of
degenerative arthritis in his back.” Dr. Weis prescribed
muscle relaxants and pain medication, and scheduled Mr.
Lindquist for a follow-up examination two weeks later.
Mr. Lindquist returned to Dr. Weis on May 4, 1999
complaining of continued soreness and trouble sleeping. At
a May 11, 1999 appointment, Mr. Lindquist reported that his
back was “a little better.” In his medical records, Dr.
Weis noted that Mr. Lindquist had “good healing of the
muscle spasm.” Dr. Weis further reported: “[T]his patient
was improving greatly, to the point that he was almost over
the symptoms that he presented with. I saw no reason at all
to pursue any further examination of that patient in a
particular area that was involved or any further testing
that needed to be done. I fully expect him at the next
visit no complaint [sic] or not return at all.”
However, on May 25, 1999, Mr. Lindquist returned to Dr.
Weis complaining of Page 641 increasing back pain at
night rendering him unable to sleep. Dr. Weis believed that
Mr. Lindquist’s increased pain at night and inability to
sleep was due to degenerative arthritis in his back.
Accordingly, Dr. Weis adjusted Mr. Lindquist’s medications
and ordered Mr. Lindquist to return in two weeks. Mr.
Lindquist returned on June 1, 1999 complaining of muscle
spasms. Dr. Weis attempted to relieve the spasms through
manipulation and again altered Mr. Lindquist’s medications.
Mr. Lindquist never returned to Dr. Weis.
On June 7, 1999, Mr. Lindquist experienced mid-back pain
that radiated into his chest. Fearing that Mr. Lindquist
was having a heart attack, Plaintiff transported her
husband to the emergency room at Barnes-Jewish Hospital in
St. Peters. After Mr. Lindquist signed forms consenting to
medical treatment, Doctors Gardiner and Deline treated Mr.
Lindquist. Dr. Gardiner ordered a chest x-ray and released
Mr. Lindquist and instructed him to return to his
physician, Dr. Farrell, and to have an ultrasound of his
gall bladder the next day.[fn1]
On or about June 25, 1999, Mr. Lindquist called Dr.
Farrell’s exchange complaining of numbness in his lower
chest area and legs. In response, the on-call doctor, Dr.
Hingst, wrote a prescription for additional medication. At
an appointment with Dr. Hingst on June 28, 1999, Dr. Hingst
prescribed an “MRI L-spine,” a lumbar MRI. Mr. Lindquist’s
symptoms, however, were concentrated in the thoracic area
of his back. Plaintiff and Mr. Lindquist went directly from
Dr. Hingst’s office to have the MRI. Dr. McCown, a
radiologist, reviewed the MRI and prepared a report
indicating only degenerative changes in Mr. Lindquist’s
lower back.
Later that same evening, Mr. Lindquist discovered that he
could not get off of the toilet or lift his legs after
attempting to move his bowels. An ambulance transported Mr.
Lindquist to Barnes-Jewish Hospital in St. Peters. On June
29, 1999, Mr. Lindquist was transferred to
Barnes-Washington University where he learned that an x-ray
and MRI revealed multifocal plasmacytoma, or malignant
tumors of the plasma cells. Essentially, Mr. Lindquist
became a paraplegic when his 5th thoracic vertebra
disintegrated due to undiagnosed spinal cancer.
Mr. Lindquist filed suit against the corporate employers
of eight doctors for alleged delayed diagnosis and
treatment of Mr. Lindquist’s spinal cancer.[fn2] The named
defendants included: Scott Radiological; Barnes-Jewish;
Family Medical Group of St. Peters, Inc.; Mid-America;
SEC/EMCARE Emergency Care, Inc.; EMCARE Physician Services,
Inc.; EMCARE of Missouri, Inc.; Multi-Care Medical, P.C.;
Washington University; and Nydic Open MRI of Missouri.[fn3]
The case was tried, and, on May 13, 2003, a jury returned a
verdict in favor of Mr. Lindquist on his personal injury
claim and awarded him damages as follows: $5.5 million
($1,750,000 for past economic damages, including medical
damages; $1,750,000 for past non-economic damages;
$1,000,000 for future economic damages, Page 642
excluding medical damages; and $1,000,000 for future
non-economic damages).
On June 18, 2003, the trial court entered its judgment on
the verdict. Three defendants, Mid-America, Scott
Radiological and Barnes-Jewish, filed post-trial
motions.[fn4]
Mid-America filed a Motion for Judgment Notwithstanding
the Verdict and in accordance with the Motion for Directed
Verdict, or, in the alternative, Motion for a New Trial or,
in the alternative, Motion to Amend the Judgment. In its
Motion for Judgment Notwithstanding the Verdict,
Mid-America alleged, inter alia, that: (1) Plaintiffs
failed to produce legally sufficient evidence to make a
submissible case of negligence, causation or damages
against Mid-America; and (2) the verdict returned by the
jury was manifestly irregular and defective because it
permitted multiple recoveries for the same injury or
category of damages.
In its alternative Motion for a New Trial, Mid-America
alleged, inter alia, that: (1) the verdict against
Mid-America was against the weight of the evidence because
the only evidence of past economic loss was medical bills
amounting to approximately $200,000 and the jury returned a
verdict of $1,750,000 for past economic damages; and (2)
the award of $1,000,000 for future economic damages was not
supported by the evidence because Mr. Lindquist earned
$87,000 per year prior to his voluntary retirement and,
post-retirement, received substantial benefits from the
school district. Mid-America further alleged that a new
trial was necessary because of instructional errors.
Specifically, Mid-America alleged, inter alia, that
Instructions 18, 20, 22, 24 and 26:(1) included improper
roving commissions; (2) were not contained in M.A.I.; and
(3) were contrary to M.A.I. Furthermore, Mid-America
alleged that the verdict and judgment in favor of
Plaintiffs was grossly and shockingly excessive in amount
indicating juror passion, prejudice and sympathy.
In its alternative Motion to Amend Judgment on
non-economic damages, Mid-America alleged that a single
statutory cap for non-economic damages should be applied to
the award of $1,000,000 in non-economic damages.
Mid-America further alleged that the verdict and judgment
were manifestly irregular and defective because of
erroneous instructions and an erroneous verdict form.
Scott Radiological filed a Motion for Judgment
Notwithstanding the Verdict, or in the alternative, Motion
for New Trial. In its Motion for Judgment Notwithstanding
the Verdict, Scott Radiological alleged, inter alia, that
there was no legally sufficient medical evidence to
indicate that: (1) Mr. Lindquist’s damages were caused by
care and treatment provided by Dr. McCown; (2) there was a
discrepancy between the order for an MRI of the lumbar
spine and the symptoms questionnaire completed by Mr.
Lindquist; and/or (3) Dr. McCown had a duty to attempt to
contact Dr. Hingst about the alleged discrepancy.
In its alternative Motion for a New Trial, Scott
Radiological alleged, inter alia, that: (1) the verdict was
against the weight of the evidence in that evidence
revealed that Dr. McCown did not have a duty to contact Dr.
Hingst and that Mr. Lindquist’s condition and eventual
outcome was not caused by any negligent acts by Dr. McCown;
(2) Instruction Number 7 Page 643 constituted an improper
roving commission; (3) the trial court erroneously refused
to grant its motion for directed verdict because Plaintiffs
failed to make a submissible case; and (4) the verdict
against all defendants was grossly excessive, indicating
bias, passion and prejudice on the part of the jury.
Defendant Barnes-Jewish filed a Motion for Judgment
Notwithstanding the Verdict, or in the alternative, Motion
for New Trial, or in the alternative, Motion to Amend
Judgment or for Remittitur. In its Motion for Judgment
Notwithstanding the Verdict, Barnes-Jewish alleged, inter
alia, that the trial court erred when it denied its motion
for directed verdict at the close of the evidence because,
Plaintiffs failed to establish a submissible claim: (1) of
actual agency; (2) of apparent or ostensible agency; (3) of
the application of the borrowed servant or agent doctrine;
and (4) that either Dr. Gardiner or Dr. Deline caused any
of the Lindquists’ injuries or damages.
In its alternative Motion for New Trial, Barnes-Jewish
alleged, in pertinent part, that a new trial was warranted
because: (1) the trial court made several instructional
errors; (2) the verdict against Barnes-Jewish was against
the weight of the evidence because expert testimony
revealed that both Drs. Gardiner and Deline acted within
the applicable standard of care; (3) Plaintiffs failed to
present sufficient expert testimony that either Dr.
Gardiner or Dr. Deline was negligent; and (4) the entire
verdict was excessive.
In its alternative Motion to Amend Judgment according to
the evidence or under the principles of remittitur,
Barnes-Jewish alleged, inter alia, that the jury’s verdict
in favor of Mr. Lindquist in the amount of $1,750,000 for
past economic damages was unsupported by the evidence
because evidence at trial indicated only $200,000 in
medical expenses, and at most $150,000 in lost wages
totaling $350,000. Accordingly, Barnes-Jewish contended
that the past economic damages aspect of the award was at
least $1,400,000 too high and should be set aside or
reduced by that amount under principles of remittitur.
On October 16, 2003, the trial court granted Scott
Radiological’s JNOV. In the same Order, the trial court
determined that the verdict of $5,500,000 in favor of Mr.
Lindquist exceeded fair and reasonable compensation for his
injuries. In particular, the trial court noted that the
award to Mr. Lindquist of $1,750,000 in past economic
damages was excessive and that such calculation “must be
the result of passion” and ordered “a new trial on all
issues” in favor of Mid-America and Barnes-Jewish. The
trial court further found that a new trial must be granted
because several instructions gave the jury an improper
roving commission. Accordingly, the trial court set aside
the judgment in favor of Mr. Lindquist and against
Mid-America and Barnes-Jewish. This appeal followed.[fn5]
Standard of Review
We review a trial court’s ruling on a motion for new trial
for abuse of discretion. Hyde v. Butsch, 861 S.W.2d 819,
820 (Mo.App.E.D. 1993). The trial court abuses its
discretion “when a trial court’s 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. . .
.” Wingate by Carlisle v. Lester E. Cox Medical Center, 853
S.W.2d 912, 917 (Mo. banc 1993). When presented with the
grant of Page 644 a new trial following a plaintiff’s
verdict, we view the evidence and all inferences therefrom
in the light most favorable to the plaintiff. Luyties
Pharmacal Co. v. Frederic Co., Inc., 716 S.W.2d 831, 833
(Mo.App.E.D. 1986). We are also guided by the principle
that “[c]ourts should not overturn a jury verdict lightly.
Trials are costly — for the litigants, the jurors
and taxpayers.” Keltner v. K-Mart Corp., 42 S.W.3d 716,
722 (Mo.App.E.D. 2001).
When reviewing whether a verdict was excessive, we view
the evidence in the light most favorable to the verdict and
disregard any unfavorable evidence to the contrary. Ince v.
Money’s Bldg. & Dev., Inc., 135 S.W.3d 475, 479
(Mo.App.E.D. 2004). We consider the case on its own facts
to ultimately decide what fairly and reasonably compensates
that specific plaintiff for the damages sustained. Id.
A trial court order granting a new trial on grounds of
instructional error involves a question of law, and
accordingly, we must examine the record presented to
determine whether the challenged instructions were
erroneous and, if so, whether such instructions prejudiced
the complaining party. Wallace v. May, 822 S.W.2d 471, 472
(Mo.App.E.D. 1991).
In reviewing a trial court’s grant of JNOV, we assess
whether the plaintiff made a submissible case. Pikey v.
Gen. Accident Ins. Co. of Am., 922 S.W.2d 777, 780
(Mo.App.E.D. 1996). We review the trial court’s grant of
JNOV by considering only the evidence that supports the
verdict and the inferences reasonably drawn therefrom. Id.
We affirm “only if there is no room for reasonable minds to
differ on the issues and if the trial court’s action is
supported by at least one of the grounds raised.” Id.
Moreover, we affirm if the trial court’s ruling was proper
for any reason, even if its assigned grounds were wrong.
Metropolitan Tickets, Inc. v. City of St. Louis, 849 S.W.2d
52, 53 (Mo.App.E.D. 1993).
Discussion
A. The Motions for New Trial
As an initial matter, we review the rationale for the grant
of a new trial on all issues where a trial court has found
juror passion and prejudice. As the Supreme Court has held:
[w]here a verdict is shown to be the result of passion
and prejudice on the part of the jury, then the entire
verdict and judgment will be presumed to be so tainted
with the poison that nothing short of a new trial will
extract the virus. A jury so dominated and blinded by
passion and prejudice as to render a verdict beyond all
reason as to the amount cannot be held to have given the
losing party a fair trial in other respects.
Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62
S.W.2d 1079, 1082 (1933). In short, a trial court that finds
passion and prejudice from an excessive verdict is
concluding that “the judgment is severely prejudicial and
can only be addressed through a new trial.” Graham v.
County Med. Equip. Co., Inc., 24 S.W.3d 145, 148
(Mo.App.E.D. 2000).
1. Excessiveness of the verdict — jury prejudice and
passion
We first address Plaintiff’s second point in which she
contends that the trial court improperly relied on the size
of the verdict alone in finding that the verdict was the
product of passion and prejudice. Mid-America counters that
the trial court is permitted to and properly found in this
case, juror passion and prejudice based on Page 645 the
size of the verdict alone.[fn6]
This court carefully articulated the proper approach to
reviewing a trial court’s grant of a new trial based on the
excessiveness of the verdict in Bodimer v. Ryan’s Family
Steakhouses, Inc., 978 S.W.2d 4 (Mo.App.E.D. 1998). In
Bodimer, we described the two types of excessive verdicts:
“(1) where the verdict is simply disproportionate to the
proof of injury and results from an honest mistake by the
jury in assessment of the evidence and, (2) where the
verdict’s excessiveness is engendered by trial error or
misconduct and thus results from the bias and prejudice of
the jury.” Bodimer, 978 S.W.2d at 9.
With respect to the first category of excessiveness, we
concluded that a verdict “may be corrected by an enforced
remittitur and does not require a retrial.” Id. However,
the second category of excessive verdicts “is prejudice and
can only be remedied with a new trial.” Id. Most
importantly, as it impacts this case, we held that “a new
trial is only available upon showing trial error indicated
prejudice in the jury, and the amount of the verdict by
itself is not enough to establish [the] verdict was [the]
result of bias, passion and prejudice.” Id., citing Larabee
v. Washington, 793 S.W.2d 357, 359 (Mo.App.W.D. 1990)
(overruled on other grounds). Because we found in Bodimer
that the bias which supported the grant of the new trial
constituted “the excessiveness of the verdict in relation to
what the trial court perceived as the evidence” and we
found no evidence of trial error or misconduct we reversed
the grant of a new trial and remanded with instructions to
enter judgment in accordance with the jury’s verdict.
Despite the guidance of Bodimer, Mid-America relies, as
did the trial court, on Anderson v. Burlington Northern
R.R. Co., 700 S.W.2d 469, 477 (Mo.App.E.D. 1985) for the
proposition that the “law is clear that the trial court may
find passion and prejudice of the jury from the
excessiveness of the verdict alone.” Although Anderson does
state that “the trial court may find passion and prejudice
by the jury from the excessiveness of the verdict alone,”
the applicability of this proposition here is questionable.
First Anderson, unlike this case and Bodimer, involves an
appeal of the trial court’s denial of a motion for new
trial on grounds of excessiveness. Second, the same judge
who authored Anderson authored Bodimer fifteen years later
and the court in Bodimer very clearly connects a finding of
jury passion and prejudice to trial court error or jury
misconduct at the trial court level.
Moreover, even assuming a distinction between the trial
court’s role and the appellate court’s role, a review of
the rationale for the distinction persuades us that it is
not applicable here. In Sofian v. Douglas, 324 Mo. 258, 23
S.W.2d 126 (1929), the Supreme Court thoroughly discussed
the trial court’s and appellate court’s different functions
in reviewing a claim that the verdict is excessive. The
Supreme Court noted that when a trial court considers the
excessiveness of a verdict, it has more latitude than an
appellate court because of the trial court’s greater
ability to assess the weight of the evidence. Sofian, 23
S.W.2d at 129. Thus, when a trial court infers bias and
prejudice from the size of a verdict alone, it acts within
the context of its discretion to determine whether a
verdict is against the weight of the evidence. Id.
Here, however, the trial court was apparently unaware of,
and therefore declined to exercise, its authority to
determine Page 646 whether to grant a new trial on the
grounds that the verdict as a whole was against the weight
of the evidence based on its size alone.[fn7] Having
declined to find that the verdict as a whole was against
the weight of the evidence based on its size, the trial
court here is in no different position than an appellate
court which, because it does not weigh the evidence, is
prohibited from inferring passion and prejudice from the
mere size of the verdict. See Means v. Sears, Roebuck &
Co., 550 S.W.2d 780, 788 (Mo. banc 1977) (“mere size of the
verdict does not in and of itself establish that it was the
result of bias and prejudice without showing some other
error committed during trial”).
In addition, Mid-America’s attempt to decouple a finding
of jury passion and prejudice from jury misconduct,
thereby diminishing the seriousness of such a finding, is
neither consistent with Bodimer nor supported by either
older or more recent Supreme Court cases. In Clark, 62
S.W.2d at 1083, the Supreme Court held that:
[T]he mere fact that the court trying the case originally
or on appeal comes to the conclusion that a verdict is
excessive is far from finding that same resulted from
passion and prejudice. If the mere fact of the verdict
being found excessive without more is sufficient to show
passion and prejudice, then all excessive verdicts demand
new trials.
Likewise, in Jones v. Pennsylvania R.R. Co., 353 Mo. 163,
182 S.W.2d 157, 159 (1944), the Supreme Court, relying
heavily on Sofian v. Douglas, supra, noted that there was a
“vital distinction” between excessive verdicts and verdicts
so grossly excessive (or inadequate) as to indicate bias
and prejudice. Further elaborating, the Supreme Court
stated that “the specified ground, `because the verdict is
so grossly excessive as to indicate that it was the result
of bias and prejudice,’ savors of misbehavior on the part
of the jury.” Jones, 182 S.W.2d at 159. (emphasis added);
see also Bailey v. Interstate Airmotive, 358 Mo. 1121, 219
S.W.2d 333 (1949) (excessiveness as would indicate the
verdict was the result of bias and prejudice “savors of
misbehavior on part of the jury”); Skadal v. Brown, 351
S.W.2d 684, 690 (Mo. 1961) (bias and prejudice referred to
as jury “misbehavior”); Heins Implement v. Highway &
Transp. Comm’n, 859 S.W.2d 681 (Mo. banc 1993) (decision to
grant new trial based on size of award rests with trial
court because of its ability to judge impact of alleged
trial errors on jury). The Western District has also noted
that a jury which awards a verdict which is simply too
bountiful under the evidence is culpable only of an honest
mistake and not of misconduct requiring a new trial. Letz
v. Turbomeca Engine Corp., 975 S.W.2d 155, 175 (Mo.App.W.D.
1997).
Here there is no question that the trial court made no
finding of any jury misconduct or misbehavior. Nor did the
trial court point to any trial errors, with the exception
of instructional error discussed below. Moreover, although
in their motions for new trial, Defendants blamed jury
passion and prejudice for the size of the verdict as a
whole, the only specific allegations of excessiveness
related to the absence of evidence to support the size of
the past and future economic damage awards, claims
typically associated with “mere excessiveness” rather than
“gross excessiveness” and generally corrected by
remittitur. Finally, the record is devoid of Page 647 any
suggestion that the jury engaged in any misbehavior which
vitiated the verdict as a whole.
As in Bodimer, there is nothing in this record that
indicates the alleged excessiveness of the verdict was
“engendered by trial error or misconduct and thus results
from the bias and prejudice of the jury.” 978 S.W.2d at 9.
Nor does the record support a finding that the award was
grossly excessive rather than merely excessive, even
without considering whether trial error or jury misconduct
was present. Accordingly, the trial court abused its
discretion in granting a new trial on the basis of gross
excessiveness resulting from jury bias and prejudice.
2. Fair and Reasonable Compensation — overall award
In her second point, Plaintiff also challenges the trial
court’s finding that the total award of five and one half
million dollars exceeded fair and reasonable compensation
and thus was “the result of passion.”[fn8] Typically, where
a jury has “awarded a sum disproportionate to the amounts
usually awarded for comparable injuries under the rule of
uniformity . . . [s]uch a mistake can be cured and
corrected without a new trial, by requiring a remittitur of
a portion of the amount awarded.” Skadal, 351 S.W.2d at
689. As we have held:
[w]here the jury errs by awarding a verdict which is
simply too bounteous under the evidence, injustice may be
prevented by ordering a remittitur. A new trial is not
required because the jury is not guilty of misconduct,
only an honest mistake as to the nature and extent of the
injuries.
Larabee, 793 S.W.2d at 360. Here, as the trial court
correctly determined, remittitur was unavailable. See
Section 538.300 and Callahan v. Cardinal Glennon Hosp., 863
S.W.2d 852, 873 (Mo. banc 1993).
We first consider whether the award, as a whole, exceeded
fair and reasonable compensation. As a general matter, a
jury’s award should “fairly and reasonably” compensate the
plaintiff. Callahan, 863 S.W.2d at 872. Our Supreme Court
has set forth factors for a jury to consider when
determining a figure that fairly and reasonably compensates
the plaintiff for his injuries. See Kenton v. Hyatt Hotels
Corp., 693 S.W.2d 83, 98 (Mo. banc 1985) and Callahan, 863
S.W.2d at 872. More specifically, the jury should consider,
“the nature and extent of injury, diminished earning
capacity, economic condition, plaintiff’s age, and awards
in comparable cases.” Callahan, 863 S.W.2d at 872. A jury
is also entitled to consider “certain intangibles” such as
“past and future pain, suffering, effect on life-style,
embarrassment, humiliation, and economic loss.” Id.
(citation omitted.) Importantly, our Supreme Court directs
us to grant a jury Page 648 “virtually unfettered”
discretion in reaching its decision because there is a
“large range between the damage extremes of inadequacy and
excessiveness.” Id. (citation omitted.)
When faced with the task of reviewing whether a verdict
was excessive on appeal, “we view the evidence in the light
most favorable to the verdict, disregarding unfavorable
evidence to the contrary.” Ince, 135 S.W.3d at 479. There
is no precise formula for determining if a verdict is
excessive. Firestone v. Crown Center Redevelopment Corp.,
693 S.W.2d 99, 108 (Mo. banc 1985). Accordingly, we
consider each case on its own facts to ultimately decide
what fairly and reasonably compensates a plaintiff for the
damages sustained. Ince, 135 S.W.3d at 479.
At trial, Mr. Lindquist offered compelling testimony about
how paralysis changed his life. By way of background, Mr.
Lindquist revealed that he began having back problems when
he was working as an assistant principal at Fort Zumwalt
North High School. As a principal, Mr. Lindquist supervised
the lunchroom and met with students with attendance or
discipline problems. He attended school activities both at
Fort Zumwalt North High School and at other schools.
Although he enjoyed the adults he worked with, he adored
the students. In his free time, he was an avid golfer.
Mr. Lindquist became paralyzed when, at age 51, his 5th
thoracic vertebra disintegrated due to undiagnosed spinal
cancer. Doctors suggested that they try to restore some
mobility to Mr. Lindquist by performing surgery to remove
pressure from his spine. Despite surgery, Mr. Lindquist did
not regain mobility or sensation in his torso below his
lower chest.
Mr. Lindquist was hospitalized from June 29, 1999 until
August 18, 1999. As a result of his paralysis, Mr.
Lindquist could not control his bladder or his bowels.
While living on the spinal cord rehabilitation floor of the
hospital, Mr. Lindquist learned to catheterize himself in
order to relieve his bladder. At the hospital, Mr.
Lindquist underwent physical therapy and occupational
therapy twice a day, five days a week. In order to go to
therapy, Mr. Lindquist needed to wear a brace because he
could not control his body. At physical therapy, Mr.
Lindquist performed basic exercises in an attempt to
restore some muscle control. At occupational therapy, Mr.
Lindquist had to re-learn to dress himself. Because of his
paralysis, Mr. Lindquist was required to use special tools
to put on pants and socks. Mr. Lindquist also learned to
use a transfer board to enable him to get into a car, move
himself from a chair to his bed or from his wheelchair to
another chair. The therapists visited the Lindquist home to
continue therapy upon Mr. Lindquist’s release.
The realities of living in a wheelchair forced the
Lindquists to make numerous adjustments to their lives once
Mr. Lindquist came home from the hospital. The Lindquists
had to purchase a van with a wheelchair ramp. Because they
lived in a two-story home with all bedrooms upstairs,
Plaintiff ordered a hospital bed and set it up in the
living room so that, once home, Mr. Lindquist had a place
to sleep. In light of his lost bowel control, Mr. Lindquist
often had bowel movements in his bed. At work, Mr.
Lindquist wore a leg bag to catch his urine. Despite the leg
bag, Mr. Lindquist had some “accidents” at work in front of
his students and his colleagues.
The Lindquists’ home had only one-half bath on the main
floor and Mr. Lindquist’s wheelchair did not fit into the
half bathroom. With no shower on the first floor, Mr.
Lindquist took sponge baths in his bed Page 649 until a
carpenter friend converted the laundry room into a shower.
The shower included a bench with a hole and bucket in case
Mr. Lindquist’s bowels emptied while in the shower. After a
while, the Lindquists learned to perform enemas to try to
regulate when his bowels would empty. Although the
Lindquists considered making more adjustments to their
home, they ultimately sold and built a new more accessible
home.
Mr. Lindquist continued in outpatient therapy where he did
exercises and wore battery-powered stimulator on his legs to
help stimulate muscles that had atrophied. Slowly, Mr.
Lindquist began to make strides. Mr. Lindquist first
regained some feeling in his toes, then his legs. Through
the use of machines, the therapists helped Mr. Lindquist
bear weight on his legs. With the use of leg braces,
therapists helped Mr. Lindquists take a few steps.
Ultimately, Mr. Lindquist walked with the assistance of a
walker. At the Class of 2001 graduation ceremony, Mr.
Lindquist labored to walk for his students with the use of
canes. Despite these strides the Lindquists never resumed a
marital love life due to separate rooms, separate beds and
the swelling and sores Mr. Lindquist suffered from spending
most of his day in the wheelchair.
Despite his physical accomplishments, in the summer of
2001, Mr. Lindquist learned that he needed a stem cell
transplant. Mr. Lindquist missed two months of school due
to the transplant. Exhausted by any activity and feeling
like he was a hardship on his wife and the school, Mr.
Lindquist retired from his job in 2002. Mr. Lindquist
testified that, at the time of his retirement, Mr.
Lindquist was earning approximately $87,000 per year.
At the close of all evidence, the jury awarded $5.5
million ($1,750,000 for past economic damages, $1,750,000
for past non-economic damages, $1,000,000 for future
economic damages, and $1,000,000 for future non-economic
damages) to Mr. Lindquist. The jury awarded an additional
$1,350,000 ($675,000 for past non-economic damages and
$675,000 for future non-economic damages) to Plaintiff.
The record clearly supports the jury’s award in this case.
Specifically, the evidence disclosed that Mr. Lindquist was
rendered paraplegic when, at age 51, despite repeated doctor
and hospital visits, Defendants failed to timely diagnose
and treat his spinal cancer. The evidence adduced revealed
that the paralysis Mr. Lindquist suffered was a
significant, devastating event that forced him to incur
substantial medical bills, retire from his job at a local
high school, and completely alter his life. A review of
comparable cases reveals that, given Mr. Lindquist’s
injuries and the consequences that necessarily followed, a
$5.5 million award is not excessive. See Lay v. P & G
Health Care, Inc., 37 S.W.3d 310 (Mo.App.W.D. 2000)
(damages award of $9,252,500 not excessive where dumbwaiter
fell on repairman and caused a massive head injury,
requiring several surgeries, and chronic dizziness,
blindness, drooling, no sense of smell or taste, headaches,
hearing loss, pain and discomfort, airway obstruction, and
difficulty fighting life-threatening infections); Fowler v.
Park Corp., 673 S.W.2d 749 (Mo. banc 1984) (damages award
of $6 million not excessive where 19-year-old lost both of
his legs above the knees when run over by a switch engine).
3. Fair and Reasonable Compensation — past economic
damages
In Plaintiff’s first point on appeal, she contends the
trial court erred in granting a new trial instead of
correcting the excessive past economic damage award.
Similarly, in Plaintiff’s third point on appeal, Page 650
she argues that “the trial court erred in failing to remit
the amount the jury awarded for past economic damages.”
Moreover, Plaintiff admits that the portion of the award
fixing past economic damages exceeds the evidence of Mr.
Lindquist’s past wages and expenses.[fn9] Specifically,
Plaintiff concedes that:
[T]he proof of past economic losses is discernable [sic]
from the record. . . . [T]he medical-expense claim was for
$190,000, a sum certain culled from greater bills everyone
agreed arose treating Lindquist’s cancer and paraplegia.
Defendants did not contest Mr. Lindquist’s work absence or
lost earnings June 28, 1999 through December 1999; then
June 2002 to the time of trial. [Defendants] also agreed
that he required a wheelchair-accessible house and car
and did not contest Plaintiffs’ proof of those amounts.
Plaintiff also concedes that evidence supports a finding
that Mr. Lindquist suffered approximately $140,000 in lost
past earnings.
Both Barnes-Jewish and Mid-America admit that Plaintiff
suffered past economic losses while they simultaneously
challenge the extent of those losses. Barnes-Jewish argued
in its Motion for New Trial that the past economic damages
award was “erroneously high by the amount of $1,400,000,
and either the Court should set it aside to that extent as
against the weight of the evidence or reduce it by that
amount under principles of remittitur.” Mid-America
contends on appeal that the past economic damages award
exceeds the proof offered at trial. Specifically,
Mid-America contends that the evidence at trial establishes
that Mr. Lindquist incurred medical bills “in the total
amount of $190,491.00.” Mid-America also claims that the
Lindquists gained $16,000 when they sold their home for
$294,000 in order to buy a new wheelchair-accessible house
costing $278,000. Furthermore, Mid-America points out that
Mr. Lindquist grossed $87,000 per year and at the time of
his retirement, and upon retiring received “a retirement
salary of $48,000.00 per year.”
Here, we are faced with a situation in which the parties
as well as the trial court expressly acknowledge a problem
with the size of the award for past economic damages. The
parties, of course, differ on the solution to the problem.
Plaintiff contends that the trial court erred in not
“correcting” the verdict, relying primarily on Jetco
Heating & Air Conditioning, Inc. v. Spizman, 735 S.W.2d 54
(Mo.App.E.D. 1987).
In Jetco, a case involving a contract to repair storm
damage to a roof, the trial court reduced a verdict which
was in excess of the amount sought in the pleadings. The
appellant argued that the reduction constituted a
remittitur in violation of Firestone v. Crown Center
Redevelopment Corp., supra. This court, in rejecting the
appellant’s argument held: “. . . the trial court’s
reduction of the jury verdict did not constitute a
remittitur, but was a reduction of the verdict because
there was no evidence to support an award which exceeded
the $6,000 asked for in the petition.”
Mid-America argues that Jetco is distinguishable because
the claim in Jetco was for a liquidated amount, where here
the claim is unliquidated. Although the reasoning of the
court appears to be Page 651 broader than Mid-America
suggests, we agree that applying Jetco to a medical
negligence case in which the legislature has expressly
prohibited remittitur is unwarranted. Regardless of whether
the “reduction” in Jetco constituted a remittitur, we
conclude that a “reduction” or “correction” to reduce the
past economic damages under the circumstances presented in
this case would constitute a remittitur. Thus, the trial
court did not err in failing to enter a remittitur.
Plaintiff also cites Vincent by Vincent v. Johnson, 833
S.W.2d 859 (Mo. banc 1992) for the proposition that the
trial court may have had a duty to decrease the verdict if
it exceeded proven losses. Plaintiff accurately notes that
the Supreme Court in Vincent by Vincent, identifies Section
537.068 (the statute authorizing remittitur) as the source
of such a duty. However, the reference in Vincent by
Vincent is not central to any holding in the case and is
unquestionably inconsistent with Section 538.300.
Accordingly, we decline to assign any error on the basis of
Vincent by Vincent.
The unavailability of remittitur or the absence of cases
permitting a court to “correct” a verdict in lieu of
remittitur does not, however, mandate a retrial on all
issues where, as here, we determine the record supports a
finding of mere excessiveness, i.e., a damage award that is
disproportionate to the evidence. When the Supreme Court
abolished the practice of remittitur in Firestone, it
stated that:
[a]bolishment of the remittitur practice in Missouri does
no violence to the power and discretion of the trial
courts to control jury verdicts. The 1975 revision of Rule
78.01 provides concisely that the trial court may grant a
new trial of any issue upon good cause shown, and . . .
[on] all or part of the issues.
Firestone, 693 S.W.2d at 110. These words are equally
applicable to this case where remittitur is unavailable by
virtue of statute.
Accordingly, where, as here, the parties and the trial
court agree that the past economic damages award is
disproportionate to the proof at trial and remittitur is
unavailable, a new trial pursuant to Rule 78.01, limited to
assessment of past economic damages, is appropriate.
Accordingly, we reverse the trial court’s grant of a new
trial on all issues but affirm its grant of a new trial
limited to the issue of past economic damages.[fn10]
4. Instructional Error
Plaintiff alleges that the trial court further erred when
it found that certain instructions submitting claims
against Mid-America, for care rendered by Dr. Weis,
constituted a roving commission.[fn11] In support of this
contention, Plaintiff asserts that these instructions were
modeled after three appropriate MAI and properly submitted
ultimate facts.
Plaintiff states that Instructions 18, 20, 22, 24 and 26
are patterned after MAI 21.02 and therefore, were properly
submitted to the jury because, under Mo.R.Civ.P. 70.02(b),
whenever MAI contains an instruction applicable to a
particular Page 652 case, that instruction shall be given
to the exclusion of all other instructions on the same
subject. Rule 70.02 acknowledges that MAI does not cover
every individual case, and accordingly provides for the
modification of the approved instructions. Where an MAI
must be modified to fairly submit the issues in a
particular case, such modifications “shall be simple, brief,
free from argument, and shall not submit to the jury or
require findings of detailed evidentiary facts.” Stone v.
Duffy Distrib., Inc., 785 S.W.2d 671, 678 (Mo.App.S.D.
1990).
The trial court found that “a new trial must be granted
[because] the Court erred in giving Instructions 18, 20,
22, 22[sic], 24, and 26, which instructions gave the jury a
roving commission in that they were too general and failed
to identify with sufficient specificity the acts or
omissions on the part of the defendant that would
constitute liability.” Because we are reviewing a trial
court order granting a new trial on grounds of
instructional error, we examine the record presented to
determine whether the challenged instructions were
erroneous and, if so, whether such instructions prejudiced
Defendant Mid-America. See Wallace, 822 S.W.2d at 472.
Instructions 18, 20 and 22 state:
In your verdict, you must assess a percentage of fault to
defendant Mid-America Orthopaedic Surgery, Inc. if you
believe:
First, plaintiff Michael Lindquist had a tumor in his
spine on 2024, and
Second, on 2024 Dr. Weis either:
Failed to take an adequate history, or
Failed to perform an adequate physical examination, or
Failed to order MRI of his thoracic spine, and
Third, Dr. Weis, in any one or more of the respects
submitted in paragraph Second was thereby negligent, and
Fourth, such negligence directly caused or directly
contributed to cause damage to plaintiff Michael
Lindquist.[fn12]
Instructions 24 and 26 state:
In your verdict, you must assess a percentage of fault to
defendant Mid-America Orthopaedic Surgery, Inc. if you
believe:
First, plaintiff Michael Lindquist had a tumor in his
spine on 2024, and
Second, on 2024 Dr. Weis either:
Failed to take an adequate history, or
Failed to perform an adequate physical examination, or
Failed to order an X-ray of his thoracic spine, or
Failed to order MRI of his thoracic spine, and
Third, Dr. Weis, in any one or more of the respects
submitted in paragraph Second was thereby negligent, and
Fourth, such negligence directly caused or directly
contributed to cause damage to plaintiff Michael
Lindquist.[fn13]
Mid-America asserts that “lay jurors simply cannot
determine what an adequate examination or an adequate
history involves without having expert testimony to guide
them on this issue” and so the “instruction allowed the
jury to roam freely though the evidence and determine on
its own what constitutes an adequate examination or history
taking.” Essentially, Page 653 Mid-America contends that
the use of “adequate” in this context converts the
instructions into improper roving commissions. We disagree.
A jury instruction is a “roving commission” when it
“assumes a disputed fact or submits an abstract legal
question that allows the jury to `roam freely through the
evidence and choose any facts which suited its fancy or its
perception of logic’ to impose liability.” Gomez v.
Construction Design, Inc., 126 S.W.3d 366, 371 (Mo. banc
2004) citing Seitz v. Lemay Bank and Trust Co., 959 S.W.2d
458, 463 (Mo. banc 1998). When, on the other hand, a
plaintiff’s theory of the case is supported by the evidence
and the instruction submits ultimate facts which define for
the jury the plaintiff’s theory of negligence, the
instruction is not a roving commission. See Lashmet v.
McQueary, 954 S.W.2d 546, 553 (Mo.App.S.D. 1997).
When we review jury instructions, we credit jurors with
ordinary intelligence, common sense and average
understanding of the English language. Id. at 552-53. We
have reviewed the record and we are not convinced that,
under the facts and circumstances of this case, “adequate”
is a scientific term requiring definition by expert
testimony or that the term “adequate” compelled the jury to
employ medical expertise. See Burns v. Elk River Ambulance,
Inc., 55 S.W.3d 466, 478-79 (Mo.App.S.D. 2001). To the
contrary, this jury’s ordinary intelligence and common
sense were sufficient to allow a determination of whether
Dr. Weis asked Mr. Lindquist sufficient questions, listened
to Mr. Lindquist’s complaints and examined Mr. Lindquist’s
body, that is, whether Dr. Weis “failed to take an adequate
history” or “failed to perform an adequate physical
examination.”
Even assuming, arguendo, that under the facts and
circumstances of the case, “adequate” is a term outside the
jury’s ordinary intelligence and understanding, evidence
and expert testimony presented at trial sufficiently
defined the term. Specifically, Dr. Leslie explained the
four distinct components of a doctor-patient relationship,
two of which included taking a medical history and the four
pillars of inspection during a physical exam. Dr. Leslie’s
testimony included references and citations to texts and
other authorities that further explained the importance of
an adequate history and what constitutes an adequate
physical examination of a patient presenting with back
pain. Two additional experts, Doctors Dollinger and Safdar,
reiterated the type of information that a doctor should
strive to extract from a patient, and Dr. Dollinger even
noted that there is a standard set of questions that a
doctor should ask his patients.
Plaintiff’s theory of medical negligence with respect to
Mid-America was supported by the evidence and the proffered
jury instruction, based on that theory, properly submitted
ultimate facts which defined for the jury Plaintiff’s
specific theory of negligence, and as a result,
Instructions 18, 20, 22, 24, and 26 did not constitute a
roving commission. See Lashmet, 954 S.W.2d at 553. Because
we find that the trial court did not err in submitting the
challenged instructions, the trial court’s order granting a
new trial based on instructional error is reversed.
B. Constitutional Challenge to Section 538.300, R.S.Mo.
In her third point on appeal, Plaintiff contends that
“banning remittitur in medical-malpractice cases while
permitting it in other tort cases violates the Page 654
Missouri Constitution. . . .”[fn14] In response,
Mid-America asserts that Plaintiff failed to properly
preserve the issue below and, therefore, we should not
review this claim.[fn15]
As a general matter, a Constitutional question must be
presented at the earliest possible moment that good pleading
and orderly procedure will permit under the circumstances,
otherwise it will be waived. Callier v. Dir. of Revenue,
780 S.W.2d 639 (Mo. banc 1989). To properly raise a
Constitutional question, the party must: (1) raise such
question at the first available opportunity; (2) designate,
by explicit reference, the specific constitutional
provision claimed to have been violated; (3) state the
facts showing the violation; and (4) preserve such question
throughout for appellate review. Id. at 641. Moreover,
“[i]n order for the issue of constitutional validity of a
statute to be preserved for appellate review, the issue
must not only have been presented to the trial court, but
the trial court must have ruled thereon.” Estate of
McCluney, 871 S.W.2d 657, 659 (Mo.App.W.D. 1994).
Here, Plaintiff’s challenge to the constitutionality of
Section 538.300 was not presented to the trial court, much
less ruled on by the trial court. Accordingly, we decline
to exercise appellate review over this claim. Point denied.
C. Scott Radiological Group’s JNOV
Plaintiff contends that the trial court erred in granting
JNOV to Scott Radiological because there was ample evidence
that Dr. McCown was negligent in failing to: (1) recognize
a discrepancy between the “MRI-L spine” (or lumbar) script
ordered by Dr. Hingst and Mr. Lindquist’s symptoms as noted
in a questionnaire; and (2) attempt to notify another
doctor about the need for a thoracic MRI.
In reviewing a trial court’s grant of a JNOV, we consider
only the evidence that supports the verdict and the
inferences reasonably drawn therefrom. Pikey, 922 S.W.2d at
780. “We affirm only if there is no room for reasonable
minds to differ on the issues and if the trial court’s
action is supported by at least one of the grounds raised.”
Id. This court must affirm the trial court if its ruling
was proper for any reason, even if its assigned grounds
were wrong. Metropolitan Tickets, 849 S.W.2d at 53.
Recognizing, perhaps, the deficiencies in proof of
causation with respect to Dr. McCown, Plaintiff directs us
to the theory of “counterfactual causation” described in
Jackson v. Ray Kruse Construction, 708 S.W.2d 664, (Mo.
banc 1986). Without deciding whether Jackson, a premises
liability case, is applicable to this medical malpractice
case, we find that Callahan, supra and Harvey v.
Washington, 95 S.W.3d 93 (Mo. banc 2003) provide more
pertinent guidance. Thus, we find that at a minimum,
Plaintiff must causally connect Dr. McCown’s conduct to Mr.
Lindquist’s injury. 95 S.W.3d at 96.
Viewing the record in the light most favorable to
Plaintiff, we find that the trial court did not err in
granting Scott Radiological’s Motion for JNOV because the
record lacks sufficient evidence linking Dr. McCown’s
actions to Mr. Lindquist’s injuries. First, Plaintiff
argues that Dr. Page 655 McCown should have noted problems
with the T-9 vertebrae after viewing the lumbar MRI.
However, because the T-9 vertebrae never collapsed and was
not a cause of Mr. Lindquist’s paralysis, the trial court
excluded evidence relating to any T-9 abnormality. Thus,
even assuming Dr. McCown should have noted the T-9
abnormality, there was no evidence before the jury
connecting the T-9 abnormality to Mr. Lindquist’s
paralysis. In addition, Plaintiff contends that Dr. McCown
had a duty to attempt to contact Dr. Hingst about the need
for a thoracic MRI. However, the expert testimony failed to
connect the “attempt” to contact Dr. Hingst to a different
outcome for Mr. Lindquist.
The evidence revealed that Dr. Hingst examined Mr.
Lindquist, reviewed the medical records and ordered a
lumbar MRI as opposed to a thoracic MRI. Because Dr.
Hingst’s actions, or inactions, were independently
sufficient to cause Mr. Lindquist’s injuries, the fact that
Dr. McCown read the lumbar MRI which Dr. Hingst ordered
could not be the “but for” cause of Mr. Lindquist’s
injuries. See Harvey v. Washington, 95 S.W.3d 93, 97 (Mo.
banc 2003) and Callahan, 863 S.W.2d at 862.
Accordingly, we affirm the trial court’s decision to grant
JNOV to Scott Radiological.[fn16]
D. New Trial Order (Barnes-Jewish)
It her final point on appeal, Plaintiff contends that the
trial court’s failure to state in its Order the rationale
for granting a new trial to defendant Barnes-Jewish is
“erroneous per se.”
Plaintiffs have failed to brief this point on appeal.
Accordingly, we deem this contention abandoned and will not
consider this point on appeal. Mo.R.Civ.P. 84.13(a).
E. Agency Relationship Between Barnes-Jewish and Doctors
Gardiner and Deline
Barnes-Jewish initially filed a cross-appeal contending
that the trial court erred in not granting its motion for
JNOV or directed verdict. We issued an Order stating that
Barnes-Jewish lacked standing to appeal because it was not
an aggrieved party after the trial court granted its motion
for a new trial. Specifically, we stated, “[Barnes-Jewish]
need not file an appeal to contest the submissibility of
plaintiffs’ case, an issue inherent in every appeal.
[Barnes-Jewish] may raise this issue in its respondent’s
brief.”
Accordingly, in its brief, Barnes-Jewish alleged that the
trial court erred in denying its Motion for Directed
Verdict at the close of Plaintiff’s case, at the close of
all the evidence, and its post-trial Motion for JNOV. In
support of these contentions, Barnes-Jewish asserts that
Plaintiff failed to make a submissible case of agency
necessary to impose vicarious liability on Barnes-Jewish
for the actions of Dr. Gardiner and Dr. Deline.
Barnes-Jewish asserts that the evidence at trial established
Dr. Gardiner and Dr. Deline as “independent contractors.”
As a general matter, a party contracting with an
independent contractor is not liable for the independent
contractor’s negligent actions. Scott v. SSM Healthcare St.
Louis, 70 S.W.3d 560, 566 (Mo.App.E.D. 2002). In contrast,
respondeat superior imposes vicarious liability on
employers for the negligent acts or omissions of employees
or agents as long as the acts or omissions are committed
within the Page 656 scope of the employment or agency. Id.
“The relationship of principal-agent or employer-employee
is a question of fact to be determined by the jury when,
from the evidence adduced on the question, there may be a
fair difference of opinion as to the existence of the
relationship.” Id., citing Bargfrede v. American Income
Life Ins. Co., 21 S.W.3d 157, 161 (Mo.App.W.D. 2000).
Agency is established where: (1) the principal must either
expressly or impliedly consent to the agent’s acting on the
principal’s behalf; and (2) the agent is subject to the
principal’s control. Scott, 70 S.W.3d at 566. Because this
case deals with a hospital-physician relationship, we focus
on “whether the hospital generally controlled, or had the
right to control, the conduct of the doctor in his work
performed at the hospital.” Id. at 566-67.
Although Barnes-Jewish cites several facts that could
support the conclusion that Dr. Gardiner and Dr. Deline
were acting as independent contractors as opposed to agents
of Barnes-Jewish, reasonable minds could differ as to
whether agency existed. See Id. at 567-68 and Bargfrede, 21
S.W.3d at 162. The mere fact that Doctors Gardiner and
Deline retained freedom to exercise independent medical
judgment does not preclude an agency relationship for
purposes of vicarious liability. Scott, 70 S.W.3d at 568.
Based on the record, we conclude that the trial court did
not abuse its discretion in denying Barnes-Jewish’s motion
for JNOV.
Conclusion
The Judgment of the Circuit Court granting Defendants
Mid-America and Barnes-Jewish a new trial is reversed and
remanded with instructions that the trial court reinstate
the original jury verdicts on all issues except with
respect to past economic damages. The case is remanded for
a new trial on past economic damages. The Judgment granting
Scott Radiological’s JNOV is affirmed.
KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., Concur.
[fn1] The gall bladder ultrasound and the tests completed
at Barnes-Jewish St. Peters Hospital ruled out major
abdominal ailments.
[fn2] Plaintiff, in her own behalf, brought a separate cause
of action against all defendants for loss of consortium.
The jury found in favor of Plaintiff on her individual
claim and awarded her $675,000 for past non-economic
damages and $675,000 for future non-economic damages for a
total of $1,350,000.
[fn3] This appeal involves claims against Mid-America,
Barnes-Jewish and Scott Radiological.
[fn4] None of the post-trial motions alleged error with
respect to the verdict in favor of Mrs. Lindquist.
[fn5] Plaintiff initially appealed directly to the Missouri
Supreme Court. The Supreme Court transferred the case to
the Eastern District on January 27, 2004.
[fn6] Neither Barnes-Jewish nor Scott Radiological responded
to this point.
[fn7] The Order contains the following conclusion: “The
Court is not aware of any authority that authorizes it to
grant a new trial because the verdict is against the weight
of the evidence, based on excessiveness of the verdict
alone.”
[fn8] The trial court actually made two different findings
as follows: (1) “The Court finds that the verdict of
$5,500,000 in favor of plaintiff Michael Lindquist exceeds
fair and reasonable compensation for his injuries[;]” and
(2) “[t]he Court finds the award of damages in favor of
plaintiff Michael Lindquist, and in particular the award of
$1,750,000 for past economic damages, so grossly exceeds
fair and reasonable compensation for his injuries and
damages that it must be the result of passion.” These two
findings are, in the context of the law which has developed
around analysis of excessive damage claims, contradictory.
In general, a finding that an award exceeds fair and
reasonable compensation is considered to be the product of
an “honest mistake” and subject to remittitur. Bodimer, 978
S.W.2d at 9. A finding that an award grossly exceeds fair
and reasonable compensation such that it is the product of
passion and prejudice is subject only to a new trial on
liability and damages.
[fn9] The trial court specifically found that the verdict
and “in particular the award of $1,750,000 for past
economic damages” grossly exceeded fair and reasonable
compensation. The trial court also expressly found that it
was unable to grant a remittitur because this case was a
medical malpractice case, citing Callahan, 863 S.W.2d at
873.
[fn10] We note that in both Toppins v. Schuermann, 983
S.W.2d 582, 588 (Mo.App.E.D. 1998) and Bodimer, supra, we
held that a trial court is not justified in granting a new
trial on damages only because of the size of the verdict.
However, in both cases, the trial court had the ability to
remit a verdict that is simply disproportionate to a
plaintiff’s damages. This case is obviously distinguishable
because of the unavailability of remittitur.
[fn11] Only Defendant Mid-America responded to Plaintiff’s
allegation that the trial court erred in determining that
Instructions 18, 20, 22,24 and 26 were submitted in error.
[fn12] Instruction 18 is based on Mr. Lindquist’s visit with
Dr. Weis on April 20, 1999. Instruction 20 is based on Mr.
Lindquist’s visit with Dr. Weis on May 4, 1999. Instruction
22 is based on Mr. Lindquist’s visit with Dr. Weis on May
11, 1999.
[fn13] Instruction 24 is based on Mr. Lindquist’s visit with
Dr. Weis on May 25, 1999. Instruction 26 is based on Mr.
Lindquist’s visit with Dr. Weis on June 1, 1999.
[fn14] In light of the constitutional question, Plaintiff
initially filed this case in the Missouri Supreme Court. On
its own motion, the Supreme Court transferred the case to
the Eastern District.
[fn15] Only Defendant Mid-America responded to Plaintiff’s
third point on appeal.
[fn16] Because of our resolution of this point, we do not
reach Scott Radiological’s assertion that the trial court
erred in submitting Instruction Number 7. Page 667