Carla Gleason v. Bendix Commercial Vehicle Systems, LLC

In the
Missouri Court of Appeals
Western District
CARLA GLEASON, ET AL., )
)
Appellants, ) WD76704 Consolidated with
) WD76706 and WD76707
v. )
) OPINION FILED: October 28, 2014
BENDIX COMMERCIAL VEHICLE )
SYSTEMS, LLC, ET AL., )
)
Respondents. )

Appeal from the Circuit Court of Clay County, Missouri
The Honorable David P. Chamberlain, Judge

Before Division Three: Gary D. Witt, Presiding Judge, Alok Ahuja, Chief Judge, and
Joseph M. Ellis, Judge

On May 9, 2005, a school bus operated by a driver for the Liberty Public School

District crashed into a pick-up truck, instantly killing the driver of the pick-up truck,

David Gleason ("Gleason"), and causing permanent, catastrophic injury to two children

who were passengers on the bus, Renna Yi ("Yi") and Andrew Hubbard ("Hubbard").

The families of these victims (collectively, the "Appellants") filed a products liability

action and proceeded to trial against Bendix Commercial Vehicle Systems, the

manufacturer of the air brake system used on the bus, and against Thomas Built Buses,
the manufacturer of the bus (collectively, the "defendants" or "Respondents"). Following

a six-week trial in the Circuit Court of Clay County, a jury returned a verdict in favor of

the Respondents. Appellants timely appealed, alleging five points of error. We affirm.

FACTS AND PROCEDURAL HISTORY1

On May 9, 2005, Irma Thomas ("Thomas") was driving a school bus for the

Liberty Public School District. Thomas had seven years of experience driving a school

bus and was on her normal route with children on board. After Thomas crested a hill

along Highway 291 in the city of Liberty, she applied the brakes to slow the bus as it

descended the hill towards a busy intersection. Thomas testified that as she pressed the

brake, the bus actually accelerated. The harder she pressed, the faster the bus seemed to

go. Witnesses testified that the bus appeared to be speeding up as it approached the

intersection. Thomas kept pressing the brake to no avail so she began swerving and

maneuvering around vehicles to avoid colliding with them. Although she avoided a

number of cars in one area, she struck a pick-up truck that was stopped at the intersection

of Highway 291 and Highway 152. The driver of the pick-up truck, Gleason, a local

attorney, was killed instantly. Two of the children on board the bus were severely

injured: Yi, a fourth grader, was rendered a quadriplegic after suffering a broken neck,

and Hubbard, a kindergartner, was left permanently brain-damaged after suffering an

open-skull fracture. Additional children were injured, but they are not parties to this

1
"In reviewing a circuit court's ruling resulting in either the grant or denial of a new trial, appellate courts
view the evidence in the light most favorable to the circuit court's order." March v. Midwest St. Louis, L.L.C., 417
S.W.3d 248, 253 (Mo. banc 2014) (citation omitted).

2
matter. The bus was estimated to be traveling at a speed between 58 and 68 miles per

hour at the point of impact.

Appellants Gleason, Yi and Hubbard each filed suit, and those cases were joined

for trial. The cause proceeded to trial against Bendix Commercial Vehicle Systems, the

manufacturer of the air brake system used on the bus, and against Thomas Built Buses,

the manufacturer of the bus.2 Appellants alleged that the air brake system on the bus

failed due, in part, to the school district's adherence to a defective maintenance protocol

established by Bendix. Appellants presented over fifty witnesses during the trial.

The defense presented evidence indicating that there was no evidence of brake

failure. The defense further asserted that the accident occurred due to a pedal

misapplication. Pedal misapplication occurs when the driver thinks he or she is

depressing the brake but is actually pressing the accelerator. Defendants presented

evidence that the accident was consistent with this phenomenon. The jury returned a

verdict in favor of the defendants. Appellants filed a motion for a new trial and requested

a hearing on the issue of juror nondisclosure. Appellants subpoenaed two jurors who

testified at the hearing. The trial court did not issue a ruling and Appellants' motion was

denied by operation of law. Appellants timely appealed, alleging five points of error.

Further relevant facts are set forth below as necessary.

ANALYSIS

In their five points on appeal, Appellants allege that the trial court erred in denying

their motion for a new trial, based on (1) allegations of intentional nondisclosure by a

2
Other defendants were dismissed prior to trial and are not relevant to the issues raised in this appeal.

3
juror; (2) the admittance of testimony of Appellants' withdrawn experts Timothy Reust

("Reust") and Stephen Irwin ("Irwin"); (3) allowing an adverse inference to be argued

during closing argument regarding Appellants' failure to call Reust and Irwin; (4) the

exclusion of evidence regarding experimental brake test results; and (5) the admittance of

testimony from expert witness Mark Edwards ("Edwards") as to standard of care and

causation issues attributable to the driver.

POINT I - JUROR NON-DISCLOSURE

In Point I, Appellants allege that the trial court erred in denying their motion for a

new trial "on grounds of juror misconduct because intentional nondisclosure during voir

dire deprived appellants of a fair and impartial jury in that juror [C.D.]3 failed to disclose

that he was familiar with the product at issue, his brother-in-law is an attorney, he held a

negative belief as to the civil justice system and he had worked as a mechanic on trucks

and buses."

Standard of Review

We review the trial court's ruling on a motion for a new trial based on juror

nondisclosure for an abuse of discretion. Johnson v. McCullough, 306 S.W.3d 551, 555

(Mo. banc 2010) (internal citations and quotation marks omitted). "A trial court abuses

its discretion if its ruling is clearly against the logic of the circumstances then before the

court and so arbitrary and unreasonable as to shock the sense of justice and indicate a

lack of careful consideration." Id. "When a motion for new trial is denied by operation

3
We refer to all jurors by initials to protect their privacy.

4
of the statute4 it must be presumed that the trial court and counsel knew and intended the

consequences of their failure to act." State ex rel. Div. of Family Serv. v. Duncan, 782

S.W.2d 457, 461 (Mo. App. S.D. 1990). We treat such a denial as though the trial court

issued a formal order denying the motion. Id. Therefore, all facts are considered in the

light most favorable to the denial of the motion. Smith v. Brown & Williamson Tobacco

Corp., 410 S.W.3d 623, 639 (Mo. banc 2013).

Discussion

"In addressing a motion for new trial based upon juror nondisclosure, the trial

court must first determine whether a nondisclosure occurred and, if so, whether the

nondisclosure was intentional or unintentional." Bell v. Sabates, 90 S.W.3d 116, 120

(Mo. App. W.D. 2002) (citing State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2001)).

"If a juror's thoughts are the same as his voir dire answer, then 'he has disclosed

everything that the voir dire question requires and no nondisclosure of any kind

occurred.'" Smith, 410 S.W.3d at 644 (citing Wingate v. Lester E. Cox Med. Ctr., 853

S.W.2d. 912, 916–17 (Mo. banc 1973)).

Intentional nondisclosure occurs: 1) where there exists no reasonable
inability to comprehend the information solicited by the question asked of
the prospective juror, and 2) where it develops that the prospective juror
actually remembers the experience or that it was of such significance that
his purported forgetfulness is unreasonable. Unintentional nondisclosure
exists where, for example, the experience forgotten was insignificant or
remote in time, or where the venireman reasonably misunderstands the
question posed.

Bell, 90 S.W.3d at 120 (citations and quotation marks omitted).

4
Section 510.360; see also Rule 78.06.

5
 "The trial court is afforded significant discretion in determining whether a

nondisclosure was intentional or unintentional, and its decision in this regard will not be

reversed on appeal absent an abuse of that discretion." Id.

A. JUROR C.D.'S RESPONSES IN VOIR DIRE REGARDING AIR BRAKES

Appellants argue that one of the jurors, C.D., intentionally failed to disclose

certain information both during general voir dire and during a follow-up voir dire

directed specifically to him. Voir dire was conducted over the course of many days. The

record shows that C.D. responded in voir dire to several questions regarding his

experience with air brakes:

First Response: TR 734-736

Plaintiffs' counsel: Anyone on this jury panel have any specific experience,
training or education as a mechanic for heavy commercial vehicles such as
those using air brakes, heavy trucks, buses, transit buses? Anyone among
you?
Right behind you is No. 39, [C.D.], Mr. [C.D.].

C.D.: Yeah, I know how they work. I've worked with them a lot, but it's
been a long time ago.

Plaintiffs' counsel: Did you work with air brake systems?

C.D.: Air brakes and boosters and all that.

Plaintiffs' counsel: It sounds like you know the whole deal.

C.D.: Well a little.

Plaintiffs' counsel: Yeah. Did you ever work professionally in the field,
[C.D.]?

C.D.: Not just on that. I worked on heavy construction.

6
 Plaintiffs' counsel: All right. I think you know that the issue in this case is
that--whether or not the air brakes on the school bus failed.

C.D.: Yes.

Plaintiffs' counsel: Would you be able to decide this case based upon the
testimony that you heard in this case, without allowing some of these
experiences to alter your opinion?

C.D.: Yes, what I would think. Whether or not that's right, I don’t know.

Plaintiffs' counsel: Okay. That's all you can do. Thank you very kindly,
sir.

Second Response: TR 782

Plaintiffs' counsel: Anyone have any experience, themselves, working on
any kind -- any type of braking system in any vehicle?

C.D.: Yeah, trucks and heavy equipment, all heavy duty.

Plaintiffs' counsel: Excellent. Thank you.

Third Response: TR 891-895

Plaintiffs' counsel: Good morning, ladies and gentlemen. . . . I realize that
at the end of the day, I went so fast, I may have missed a hand, or in this
case, a paddle. And so for that reason, just reflecting, perhaps, in the
evening, if you did reflect, or this morning, any of you think, "Well, I
wonder if maybe I should have raised or responded to one of Plaintiffs'
counsel's questions," on any subject. And I just want to give you that
opportunity. And it very frequently happens that, you know, you think,
"Gee, I guess I should have responded." And I'm asking, if you do have
that belief or feeling that you had, please raise your paddle and we can
address that. There's no reason not to. Great. Oh, yes, [C.D.], No. 39.

C.D.: Yeah.

Plaintiffs' counsel: Thank you very much, sir, for raising your paddle.

C.D.: Yes, I don't know if it will make any difference or not, but I have
had brakes go out, you know, on the highway.

7
Plaintiffs' counsel: You've had brakes go out?

C.D.: Yeah, you lose your air brakes.

Plaintiffs' counsel: Okay. On air brakes?

C.D.: Yeah.

Plaintiffs' counsel: When you were driving?

C.D.: Yeah.

Plaintiffs' counsel: Did it just come on suddenly?

C.D.: Yes.

Plaintiffs' counsel: What kind of vehicle, sir?

C.D.: A semi.

Plaintiffs' counsel: I forgot to use my voice assistance here (indicating
microphone). And when you were driving this semi, were you alone in the
vehicle?

C.D.: Yes.

Plaintiffs' counsel: Was there a crash or a mishap, C.D.?

C.D.: No. Engine blew up.

Plaintiffs' counsel: The which?

C.D.: The engine blew up as a result of that, yes.

Plaintiffs' counsel: Of the brake failure?

C.D.: Yeah.

Plaintiffs' counsel: How long ago was it?

C.D.: '71.

Plaintiffs' counsel: That's quite a long time ago.

8
 C.D.: Yeah.

***

Plaintiffs' counsel: You understand what the allegations are in this case.

C.D.: Yeah.

Plaintiffs' counsel: There's no secret that we expect there to be considerable
evidence of brake failure on the bus.

C.D.: Yeah.

Plaintiffs' counsel: And given that this happened a long time ago, and -- you
were not hurt, were you, sir? You weren't hurt or injured?

C.D.: No, not at all.

Plaintiffs' counsel: And the brakes did fail on the air brakes of that large
vehicle.

C.D.: Yeah.

Plaintiffs' counsel: Do you think you could set it aside, or do you think,
"This is too close to home, I'm not comfortable"?

C.D.: No, I just know what happened. That's all. I don't think it would have
any effect, but --

Plaintiffs' counsel: Okay. Without getting into the details, you were able to
confirm, or someone was able to confirm, after the fact, those brakes went
out. I don't want to get into details. It's not appropriate. But is that an
accurate statement?

C.D.: Yes.

Fourth Response: TR 913

Plaintiffs' counsel: And now we are back to C.D.

9
 C.D.: Yes I was in the operating engineers for 49 years--47 years. I've been
retired for 12 years. Married for ten. Moved to the area about ten years ago.
No kids.

Fifth Response: TR 949

Plaintiffs' counsel: We have had, I think, one panel member, [C.D.], and
maybe I'm wrong, who had indicated that he had had the experience of
driving a vehicle when the brakes failed. And, [C.D.], it is truly terrifying,
isn't it?

C.D.: Very.

Plaintiffs' counsel: Isn't it?

C.D.: Yes.

Sixth Response: TR 1150

Plaintiffs' counsel: Do we have any union members on the jury? . . . I want
the union and the number.

C.D.: Operating engineers, 139.

Seventh Response: TR 1456-1457

Defense counsel: Anybody else on the panel heard or familiar with the term
"pedal misapplication"? Stepping on the accelerator when they intended to
step on the brake? Any panel members? No hands. Anybody have that
experience personally, or any close family member ever have an experience
where they intended to step on the brake of their vehicle, but instead
stepped on the gas or accelerator? [M.W.], I think you told us that earlier.
And, [C.D.].

C.D.: Yes.

Defense counsel: Tell me about that experience.

C.D.: Just something you do every once in a while, but it wouldn't last any
time, you know. You hear about it all the time.

Defense counsel: That's No. 39. I'm sorry. Say that again.

10
 C.D.: Well, it's -- I've done it different times, but just for an instant. But you
hear about it all the time. Somebody runs through the garage wall.

Defense counsel: Speak up, sir. You have to be louder.

C.D.: Somebody will run through a garage wall or garage door or things
like that, but -- I've done it myself a couple of times, but not to hit anything
or -- just for an instant.

Defense counsel: Thank you.

Eighth Response; Follow Up Voir Dire: TR 1802-1806
Plaintiffs' counsel: This is always kind of a special question because this is
the last time that I will speak with any juror, any panel member, because
the next time that I'll address any of you will be in your capacity as real
jurors. . . . And as my last conversation with any panel member, I would
very much like to speak with you, No. 39, [C.D.] Good afternoon. And may
I approach and give you the microphone?

C.D.: Whatever.

Plaintiffs' counsel: . . . My question to you was, I think you had mentioned
that you were an operating engineer. Would you tell us what kind you were
and what you did?

C.D.: I run heavy equipment, all kinds of heavy equipment.

Plaintiffs' counsel: Could you give us some examples, [C.D.]?

C.D.: Scrapers, dozers and loaders, cranes. I'd drag lines. Just that, I guess.
And, of course, I drove trucks, moving tractors, moving equipment.

Plaintiffs' counsel: Okay. You had mentioned in my notes, that you have
had -- you've used air brakes, of course.

C.D.: Yeah.

Plaintiffs' counsel: Kind of -- probably have a pretty good idea how they
work.

C.D.: All air brakes, yeah.

11
 Plaintiffs' counsel: And you mentioned that you have had an air brake
failure.

C.D.: Yes.

Plaintiffs' counsel: We've already talked about that. But other than the fact
that the brakes didn't work, is there anything else -- was there anything else
that told you that it was brake failure, and not some other reason that the
vehicle would not stop? It was only brake failure?

C.D.: It was air, loss of air.

Plaintiffs' counsel: Okay. Having had that experience, and being among a
very few on this panel that have had an actual air brake failure, I'm going to
come right at you.

C.D.: Okay.

Plaintiffs' counsel: You probably know where I'm going. Assuming the
facts will be that there was a brake failure here, and under the
circumstances, a crash occurred. Enough said about it. Do you follow me?

C.D.: Yeah.

Plaintiffs' counsel: Your situation, you had an air brake failure and there
was no fatality, true?

C.D.: No crash, no.

Plaintiffs' counsel: No crash, nobody injured, no kids injured, right?

C.D.: Right.

Plaintiffs' counsel: [C.D.], would you in the back of your mind think,
"Well, both air brake failure. Both CDL drivers. If I -- if I, [C.D.], had been
driving that school bus, I think I might have been able to do something
different"? Could that enter your mind? Do you see my concern?

C.D.: I don't know what happened yet.

***

12
 Plaintiffs' counsel: You think it might be possible that -- possible that in the
back of your mind, that there could enter some thought or, based on your
experience, that you could not effectively dislodge when you go into the
jury room, about your prior experience with air brake failure?

C.D.: No, I -- you know, I -- I forgot even about that.

Plaintiffs' counsel: Okay. I understand. Could you, sir, apply that burden of
proof that I had mentioned to the other jurors, that we expect Judge
Chamberlain to apply to the jurors if you're selected to be on this jury, 51
percent?

C.D.: Yes.

Plaintiffs' counsel: No problem with applying that standard?

C.D.: None.

Plaintiffs' counsel: Okay. Thank you, [C.D.]. And thank you once again all
panel members. And thank you, Your honor. I have nothing further.

Ninth Response: TR 1837-1840
Defense counsel: Okay. Fair enough. Thank you. Mr. -- sorry, [C.D.],
Plaintiffs' counsel had asked you about this -- No. 39, I'm sorry.

C.D.: Yeah.

Defense counsel: Plaintiffs' counsel had asked you about an incident
involving a brake loss due -- you said it was due to a loss of air in the air
brakes?

C.D.: Yes.

Defense counsel: And how long ago did that occur?

C.D.: It was 1971, I think.

Defense counsel: So in that episode, is it fair to say there was a loss of
brakes, and it was fairly identifiable that the loss of -- the loss in braking
was due to a rupture or a hole in the air hose?

C.D.: Yeah, broke clear off.

13
Defense counsel: And has that been your only loss of any type of braking
capacity that you've ever had?

C.D.: No, I've had it happen on a couple of road graders, too.

Defense counsel: And what were the issues with the loss of brakes on the
road graders?

C.D.: One of them just didn't have brakes on it. It sounded like it did. With
the brakes, you have the air release and that. And I pulled out on the road,
and --

Defense counsel: So nobody --

C.D.: -- no brakes.

Defense counsel: Somebody doing the repair, did a faulty repair?

C.D.: Didn't repair it at all, yeah.

Defense counsel: And what was the other issue?

C.D.: The other one, the brakes just went out on it. I don't know what
happened to it.

Defense counsel: You never heard what the investigation was that was --
what the result of that was?

C.D.: No, it's so -- contractors don't worry much about that because I wasn't
on a job. Doesn't make any difference. You know, you have that big blade
that will stop you. But out on the road, you have to have brakes.

Defense counsel: Okay. Fair enough. And this -- this incident with the loss
in the air, were you the one that was able to identify that the brakes failed
due to a hole or rupture in the air line?

C.D.: Well, you could hear it.

Defense counsel: You could hear it.

C.D.: You could hear it.

14
 Defense counsel: And the braking in these vehicles, these heavy vehicles
that you've driven, the brakes -- even when they are working properly, do
the brakes make noises or --

C.D.: Just the air release.

C.D. explained his experience on the topic of brakes, trucks, sudden air brake failure and

with operating and working on heavy equipment nine times throughout voir dire.

Appellant's counsel displayed Exhibit 3, which is an exemplar of an automatic

slack adjuster brake part, during voir dire and specifically asked if any juror was aware of

what the exhibit was or had ever worked with or seen one before. C.D. did not raise his

hand or respond to any of the questions regarding Exhibit 3.

B. JUROR C.D.'S RESPONSES IN VOIR DIRE REGARDING FAMILY
MEMBERS IN THE LEGAL PROFESSION AND BELIEFS REGARDING THE
JUDICIAL SYSTEM

Appellants posed the following questions to the venire panel regarding whether

they had "family members" who were attorneys.

Plaintiffs' counsel: Do we have anyone -- we've had some reference to this,
but do we have anyone on this panel who has had any type of specialized
legal training or family members who are within the legal field? Anyone?
Yes, we do have some responses here. TR 742

***
VENIREMAN C.: I'm not sure if this applies. My sister-in-law is employed
with Lathrop & Gage.

Plaintiffs' counsel: Okay. Very well. Thank you very much. Yes, Mr. R.,
No. 8.

VENIREMAN R.: The question was, are you related to an attorney?

Plaintiffs' counsel: Do you have any in your family, yes, sir. TR 749

15
 At this point, Appellants' counsel clarified for the panel that the question referred

to "family members." TR 749. C.D. did not respond to this Appellants' counsel's

question regarding family members with legal experience.

C. JUROR C.D.’S RESPONSES IN VOIR DIRE REGARDING PRIOR
LITIGATION

Tenth Response: TR 1670-1671

Defense counsel: This is -- this is a -- this was asked by Plaintiffs' counsel,
but, frankly, I need to re-ask it. And I hope this doesn't take much time, but
it's important. And this actually has to do with the issue of other claims or
lawsuits, and there's a specific question that I need to ask. Other than a
divorce or domestic relationship case, has anyone here ever been a plaintiff
or defendant in any lawsuit? And if you have, please put your paddle up.
And is there anybody in the jury box? Okay. And let me go down the line.
Defense counsel: Okay. That's fine. Anybody else? And C.D. Okay.

Eleventh Response: TR 1677

Defense counsel: Very good. No. 39.

C.D.: I was a defendant.

Defense counsel: In a civil case?

C.D.: Yeah, in a civil case.

Defense counsel: That's all I need to know. Approximately what year,
C.D.?

C.D.: It was probably 15 years ago.

Defense counsel: 15, one-five?

C.D.: Yeah.

Defense counsel: Very good.

16
 Following voir dire, neither side moved to strike C.D. for cause nor did any party

use a peremptory challenge on this juror.

D. POST-TRIAL INTERVIEWS OF JURORS

Following the verdict, Appellants hired a private investigator, Valerie Summer

("Summer"), to interview the jurors and take statements from them concerning their

verdict. Following juror complaints, including complaints by C.D., that they were being

harassed by Summer after the trial, the court ordered the interviews to cease. Summer

conducted a telephone interview with C.D. As he answered questions, Summer recorded

his responses but shortly after the interview began, Summer told C.D. that she had run

out of tape in the recorder. At some point after the telephone interview, Summer brought

a typed copy of the interview to C.D.'s home. He read and initialed the pages of the

typed copy of the interview that Summer presented to him. Summer asked him to have

the statement notarized, but he refused to do so.

C.D. testified that the draft he initialed was different than the one presented to him

at the post-trial hearing. The draft he was shown at the hearing did not have blank spaces

like the original, and did not state that the tape had stopped recording. It also did not

contain "all of the questions."5

The Appellants' motion for a new trial likewise did not include C.D.'s statement as

a document in support. Attached to the motion for new trial were two affidavits from

5
The copy of the statement used in the hearing during the questioning of C.D. was not marked as an exhibit
or admitted into evidence. It is therefore not contained in the legal file for our review. The discrepancies cited are
based on C.D.'s testimony at the post-trial hearing.

17
Summer; one described information she had obtained about a different juror ("C.U."),6

and the second contained information she had obtained about juror C.D. (as opposed to

information from C.D.). The details contained in Summer's affidavit were vehemently

disputed by C.D. when he testified at the post-trial hearing on the motion for a new trial.

E. C.D.'S TESTIMONY AT THE HEARING ON MOTION FOR A NEW TRIAL

At the hearing, which took place five months after jury selection, C.D. was

questioned at length about his responses in voir dire. The first area of questioning at the

post-trial hearing was on the topic of whether he had intentionally failed to disclose that

his brother-in-law was an attorney.

Plaintiffs' counsel: Did you understand, sir, that this question was
specifically asking about family members who were within the legal field?
Did you understand that?

C.D.: Yeah.

Plaintiffs' counsel: And you understand that that specifically included both
brothers-in-law and sisters-in-law, didn't you, sir?

C.D.: No, I didn't. TR 9764-65

Later, C.D. indicated that his brother-in-law had been a criminal defense lawyer in

California and had been retired from the practice of law for many years. The following

exchange then took place:

Plaintiffs' counsel: All right. This is not a case where you simply forgot
that you had a brother-in-law, your sister's brother [sic], who was a lawyer,
true?

C.D.: Yeah, I said that before.

6
On appeal, Appellants only allege nondisclosure with regard to C.D.

18
 Plaintiffs' counsel: You didn't forget, right?

C.D.: No.

Plaintiffs' counsel: And in fact, you knew in January of 2013 when you
were being questioned, and you simply elected not to disclose that
information? You made that decision, didn't you, sir?

C.D.: No, I didn't make that decision in any special way. I just don't
consider him in my family. TR 9780

And again, counsel asked:

Plaintiffs' counsel: Did you make a decision, sir, that you were not going to
disclose the fact that your brother-in-law was an attorney?

C.D.: If I did, it was a long time ago, long before this trial. I don't
consider brother-in-laws or sister-in-laws family members. TR 9784

***

C.D.: I understand that my brother-in-law is a relative. He is not in my
family. TR 9787

"Generally, for the purposes of a voir dire examination, the phrase 'immediate

family' refers to one's parents, wife or husband, children, and brothers and sisters, and

does not include extended or collateral relatives beyond these degrees of relation." Banks

v. Village Enterprises, Inc., 32 S.W.3d 780, 789 (Mo. App. W.D. 2000) (citation

omitted). Indeed, "family" is frequently defined as:

1..a basic social unit consisting of parents and their children, considered as
a group, whether dwelling together or not . . . any group of persons closely
related by blood, as parents, children, uncles, aunts, and cousins; . . . all
those persons considered as descendants of a common progenitor.

Family, Dictionary.com, available at http://dictionary.reference.com/browse/family

(accessed: October 8, 2014).

19
 Further, as noted above, "[i]f a juror's thoughts are the same as his voir dire

answer, then he has disclosed everything that the voir dire question requires and no

nondisclosure of any kind occurred." Smith, 410 S.W.3d at 644 (citation and internal

quotation marks omitted). Here, with regard to this line of questioning, C.D. testified that

he did not respond because he does not consider his in-laws to be "in" his family.7 "The

determination of nondisclosure is left to the discretion of the trial judge whose ruling is

disturbed only by showing abuse of discretion." Id. We must assume that the trial court

found that intentional nondisclosure did not occur regarding C.D.'s brother-in-law's status

as a retired attorney.8 "Where the trial court makes no specific findings of fact, the

reviewing court must assume that all facts were found in accordance with the result

reached." Id. at 639.

At the hearing, Appellants also focused on whether C.D. had preconceived,

negative thoughts towards the jury system that he failed to disclose during voir dire.

Appellants' counsel asked numerous questions in voir dire attempting to determine

whether any venire members had negative thoughts regarding the civil justice system.

C.D. did not respond to any of those questions. At the post-trial hearing, C.D. was

questioned extensively regarding these issues.

7
In support of their position that "family" includes in-laws, Appellants cite to our decision in Strickland v.
Tegeler, in which we held that non-disclosure had occurred where a juror did not disclose that her husband's niece
and nephew had birth defects. 765 S.W.2d 726 (Mo. App. W.D. 1989). However, Strickland is easily distinguished
from the instant case in that counsel in Strickland specifically defined "immediate family" for the panel as including
"not just family members, but also [including] relatives, step-siblings, adopted relatives and even close friends."
Such an expansive definition was not expressed by Appellants' counsel here.
8
Appellants' questioning of C.D. on the subject of his brother-in-law being an attorney spanned over forty
pages of transcript, giving the trial court ample opportunity to assess C.D.'s credibility and to determine whether the
nondisclosure was intentional or unintentional.

20
 Plaintiffs' counsel: Do you have a belief, sir, or do you have a belief one
way or another whether or not a jury system, the civil jury system has,
quote, kind of outlived its usefulness, end quote?

C.D.: I know where you are now and where you are coming from now.

Plaintiffs' counsel: Yeah, and you believe that, don't you?

C.D.: No.

Plaintiffs' counsel: You don't?

C.D.: No. I question it some.

Plaintiffs' counsel: Okay. You do question it, though, right?

C.D.: Yes.

Plaintiffs' counsel: Okay. And it is your -- do you believe one way or
another whether, with all the sophisticated facts -- let me make sure I get it
right -- with all the sophisticated facts they have now and with all of those
hired witnesses and consultants, that the average person just can't sort it all
out? Isn't that your belief?

C.D.: Yeah, I do. TR 9799

***

Plaintiffs' counsel: Let's go back in time to when you showed up here in
January 2013. Did you or did you not have a belief at that time that the
civil jury system had kind of outlived its usefulness?

C.D.: No, I didn't believe that at that time. TR 9803-04

***

Plaintiffs' counsel: Did you believe, sir, that the civil justice system was
actually skewed toward people coming in claiming money?

C.D.: No, I didn't believe that.

21
 Plaintiffs' counsel: Did you sir hold in one way or another, did you or did
you not, one way or another, hold certain negative opinions about a 12-
person jury that you didn't tell us about during the jury selection process?

C.D.: No, I did not feel that. TR 9805

***

Plaintiffs' counsel: And the fact of the matter is that you made up your mind
before the evidence was concluded, true?

C.D.: No. TR 9816

With regard to C.D.'s answers concerning his alleged negative views on lawsuits,

the record reflects that he denied having a negative attitude regarding litigation at the

time he was questioned in voir dire. As for his views at the time he was subpoenaed to

testify at the post-trial hearing, his view was only that he questioned the jury system

"some."9 He specifically denied holding any negative attitudes before his experience as a

juror. He further agreed that an "average person . . . can't sort out complicated facts" that

require expert witness testimony, which is not a negative view. Consequently, the only

evidence Appellants presented regarding C.D.'s alleged attitude regarding litigation was

the affidavit prepared by Summer, which C.D. refused to have notarized and which he

described at the hearing as being an incomplete, inaccurate misrepresentation of what he

had both stated to Summer and of the statement he had initialed. Summer did not testify

at the hearing; thus, there was no evidence presented to contradict C.D.'s testimony that

he held no such negative beliefs at the time he answered questions in voir dire. As for

9
At a bench conference prior to the evidentiary hearing on the motion for new trial, Respondent's counsel
indicated that he had been contacted by several jurors, including C.D., indicating that they were being harassed by
Appellants' investigator, and wanted the harassment to stop. It was indicated at that time that C.D. was "almost in
tears" and was very disturbed by the actions of the investigator. This may explain C.D.'s subsequent "questioning"
of the justice system.

22
the credibility of this testimony of C.D., once again, that is a determination for the trial

court.

Appellants next allege that C.D. intentionally failed to disclose his experience with

trucks and buses and specifically the brake systems on them.

Plaintiffs' counsel: Would you say sir that you had a little or a lot of
experience as a truck or bus mechanic?

C.D.: Very little.

Plaintiffs' counsel: Do you recall what you said at the time of the voir dire,
sir, of the jury selection process as to whether you had a little or a lot of
experience?

C.D.: I probably said not a lot. TR 9817

***

Plaintiffs' counsel: Do you recall sir that I was standing right here, walking
in front of the prospective juror panel holding exhibit 3[exemplar of an
automatic slack adjuster brake part]?

C.D.: Yeah. TR 9818

Plaintiffs' counsel: And at that time, C.D., preliminarily, you knew--you
may not have known exactly what it was called, but you knew what this
was for, true?

C.D.: I had an idea what it was, but I didn't know what it was.

Plaintiffs' counsel: Well, you didn't know what it was called, but you knew
what it was for, correct?

C.D.: No.

Plaintiffs' counsel: Right?

C.D.: No, I didn't know just exactly what that was for. I didn't.

23
 Plaintiffs' counsel: You knew--you may not have known it was called an
automatic slack adjuster because you used to refer to them as brake arms or
simply just adjusters, true?

C.D.: Yes . . . It didn't look like that. TR 9819

***

C.D.: I never heard them called a slack adjuster ever. TR 9821

Court: He has already said he didn't know what it was, so he can't testify
that he knew what it was for. So the objection is sustained. You can ask it a
different way perhaps. He said he doesn't know what it is.

***

Plaintiffs' counsel: Before the end of the jury selection process, sir, at any
point in time do you recall whether you raised your hand about whether or
not you had any prior familiarity with this part?

C.D.: I don't think I did.

Plaintiffs' counsel: And isn't it true, sir, that you knew exactly what an
automatic slack adjuster was, but you didn't understand necessarily what it
was called?

C.D.: I knew what the brake arm was for. Automatic slide [sic] adjuster, I
had never heard of that until that day. TR 9821-22

***

Plaintiffs' counsel: And you may not have heard that it was called or
referred to as an automatic slack adjuster, but you knew what this part was
for, right?

C.D.: I guess I would know if it was a brake arm where it went. TR 9823

With regard to the topic of his work on trucks and buses, we note from C.D.'s

responses in voir dire, supra, that C.D. responded extensively to questions concerning his

experience with vehicles, brake systems, brake failure and working on heavy equipment.

24
Moreover, C.D. was the only juror specifically re-questioned at the close of Appellants'

voir dire with regard to his knowledge of air brakes. Notably, regarding C.D.'s

knowledge of air brake systems, Appellants' counsel stated to C.D. during the initial voir

dire: "It sounds like you know the whole deal." The argument that C.D. engaged in

intentional nondisclosure simply because he did not positively identify an exemplar of an

automatic slack adjuster when his testimony was that he was not aware of what that part

was or what it was called, is less than persuasive.

The following exchange which occurred between Respondent's counsel and C.D.

at the post-trial hearing further supports the trial court's finding that no intentional

nondisclosure occurred:

Defense counsel: Every time that you answered the question, you did to the
best of your ability fully, accurately and completely, true?

C.D.: Yes.

Defense counsel: And that would include the questions with respect to
automatic slack adjusters, correct?

C.D.: Absolutely.

Defense counsel: I think you indicated then, if I heard you right--let me
grab my notes--that the exhibit 3 that Plaintiffs' counsel has held up, it did
not look like this or whatever you were thinking of, you had never seen this
component before?

C.D.: Never seen anything with those side rods on it like that.

Defense counsel: So what I'm holding in my hand, which is the automatic
slack adjuster, it is a fair statement you had never seen this prior to jury
selection?

C.D.: Never. Never seen it or heard the word.

25
 Defense counsel: And in fact, Sir, what you are also telling me is that not
only you had never seen the automatic slack adjuster, you had never heard
it ever being referred to as an automatic slack adjuster?

C.D.: Never. TR 9865 -9866

The trial court is charged with judging the credibility of witnesses. We defer to

the trial court's factual findings and determinations concerning witness credibility.

March, 417 S.W.3d at 253. Here, the trial court made no finding of a nondisclosure by

C.D., intentional or otherwise.

Based on all of the above, Point I is denied.

POINT II - LACK OF FOUNDATION FOR REUST AND IRWIN'S OPINIONS

Standard of Review

A trial court "enjoys considerable discretion in the admission or exclusion of

evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal.

Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014) (citing Moore v. Ford

Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011) (quotation marks excluded)).10 It

abuses this discretion when its "ruling is clearly against the logic of the circumstances

then before the court and is so unreasonable and arbitrary that it shocks the sense of

justice and indicates a lack of careful, deliberate consideration." Id. (citation and

10
Although Appellants argue that our standard of review regarding the admission of expert testimony is de
novo, our Supreme Court has held otherwise. Appellants cite to Bryant v. Bryan Cave, LLP, 400 S.W.3d 325, 331
(Mo. App. E.D. 2013), which in turn relies on Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299, 311
(Mo. banc 2011) for its standard of review. However, "a de novo review was appropriate in Kivland only because
the Court was reviewing the lower court's construction of section 490.065, not because all evidentiary rulings
regarding expert testimony are necessarily questions of law." Lozano, 421 S.W.3d at 451, n.2. "In addition to
determining whether the factors stated in section 490.065 are present, admission of expert evidence requires the trial
court to apply the same standards for relevance and admissibility that apply to other types of evidence." Id. The
trial court's rulings are entitled to substantial deference regardless of the type of evidence being offered. Id. (citation
omitted).

26
quotation marks omitted). "If reasonable persons can differ as to the propriety of the trial

court's action, then it cannot be said that the trial court abused its discretion." Id. (citing

St. Louis Cnty. v. River Bend Estates Homeowners' Ass'n, 408 S.W.3d 116, 123 (Mo.

banc 2013)).

Discussion

Appellants argue that the trial court erred in allowing excerpts of the deposition

testimony of expert witnesses Reust and Irwin to be read to the jury after Appellants

orally withdrew them as experts. Appellants challenge the admissibility of the excerpts

based on lack of foundation for their expert opinions, pointing out that Respondents did

not lay the foundation for Reust and Irwin to testify as experts when Appellants produced

them for discovery depositions prior to trial. Appellants also contend that because they

had stipulated with Respondents that neither side would mention withdrawn experts, the

trial court erred in allowing the testimony of these two withdrawn experts to be read to

the jury.

Of particular import to this analysis, Appellants did not withdraw their designation

of these two witnesses as experts until after the fourth week of trial. That same day,

Appellants filed a motion in limine to prevent the defendants from reading the deposition

testimony of either witness, of which line/page designations had been provided to

Appellants prior to trial.11 Further, prior to withdrawing them as experts, Appellants (1)

during opening statements, played for the jury two accident reconstruction animations

11
The trial court heard Appellants' argument on their motion in limine after the lunch recess and promptly
denied it.

27
that were created by these same experts, (2) represented to the court they would lay the

foundation for these animations when they produced the experts live during their case-in-

chief, (3) established during their case-in-chief that Appellants' other experts relied upon

the opinions of Irwin and Reust in reaching their opinions, (4) failed to raise any

objections regarding foundation when the deposition designations were exchanged

pursuant to a scheduling order prior to trial, (5) counter-designated the entire depositions

of both Irwin and Reust ten days after withdrawing them, (6) continuously discussed both

Irwin and Reust throughout the trial both before and after they were withdrawn as

experts, and (7) failed to object to lack of foundation or the form of the questions during

the deposition so that it could be corrected at that time. Based on all of the above,

Respondents argue that Appellants' objection to the foundation of the opinions was

waived. Respondents further contend that there was no valid stipulation in place as to

Reust and Irwin because any oral agreement regarding withdrawn experts was made prior

to trial when both sides withdrew various other experts and neither side anticipated the

withdrawal of additional experts in the middle of trial. Finally, Respondents argue that

the foundation for Irwin and Reust's opinions is found in their curricula vitae, which

were admitted into evidence without objection.

In Missouri, the admission and exclusion of expert testimony in civil cases is

governed by section 490.065, which "sets out the legal basis for admitting expert

testimony." Kivland, 331 S.W.3d at 311. "The statute simply provides that the circuit

court is responsible for determining whether (1) the expert is qualified; (2) the expert's

testimony will assist the trier of fact; (3) the expert's testimony is based upon facts or data

28
that are reasonably relied on by experts in the field; and (4) the facts or data on which the

expert relies are otherwise reasonably reliable." Kivland, 331 S.W.3d at 310-11 (citing

section 490.065). Indeed, the court, when referring to section 490.065, stated that

"[t]hose straightforward statutory words are all you really need to know about the

admissibility of expert testimony in civil proceedings." Kivland, 331 S.W.3d at 311 n.14

(citation omitted).

An abuse of discretion occurs if the court erroneously finds that the
requirements of the expert witness statute are not met. If the trial court
finds that the expert is qualified by knowledge, skill, experience, training,
or education, that the expert's testimony will assist the trier of fact, and that
the facts or data the expert uses are reasonably relied on by experts in the
field and otherwise reasonably reliable, the trial court must admit his or
her testimony, and if not, it must be excluded. In deciding whether the facts
and data on which the expert relies are otherwise reasonably reliable, the
circuit court independently assess[es] their reliability. This is a
straightforward application of the statute.

In deciding whether to admit an expert's testimony, the circuit court
is required to ensure that all of the statutory factors are met; however, the
court is not required to consider the degree to which they are met. So long
as the expert is qualified, any weakness in the expert's knowledge is for the
jury to consider in determining what weight to give the expert.

Kivland, 331 S.W.3d at 311 (citations and quotation marks omitted) (emphases added).

Appellants argue that there was no foundational testimony in the deposition.

However, Appellants themselves used the experts' opinions in both opening statement

and in the examination of other witnesses throughout trial. In opening, Appellants played

accident reconstruction video animations that the experts had created and promised to lay

the foundation later, when they called the experts during the trial. In their case-in-chief,

Appellants elicited from their other experts that those experts relied on the testing and

29
deposition testimony of Irwin and Reust in forming their own opinions. Appellants also

cross-examined defense expert witness, Richard Radlinski ("Radlinski"), extensively

regarding the work and opinions of Reust and Irwin. Appellants specifically asked

Radlinski about the work done by Appellants' "brake team," whether he had read the

deposition of Reust, whether he knew that Reust had measured the brakes during testing,

and whether he knew that Reust performed pedal force testing. The depositions of Reust

and Irwin were not offered by Respondents until after these and other references to their

testimony had been made by Appellants.

In Respondents' case-in-chief, the curricula vitae of both experts were offered and

admitted into evidence by Respondents, without objection from Appellants. The

curricula vitae for the experts contained the foundational requirements concerning the

overall qualifications of Irwin and Reust.12 Thus, the curricula vitae provided the court

with the necessary information for evaluating whether the expert is qualified “by

knowledge, skill, experience, training, or education.” Section 490.065 states:

1. In any civil action, if scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or
otherwise.

2. Testimony by such an expert witness in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.

3. The facts or data in a particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to him at or

12
The trial court took them home in the evening and read the entire depositions of both experts prior to
ruling that their testimony could be admitted.

30
 before the hearing and must be of a type reasonably relied upon by experts
in the field in forming opinions or inferences upon the subject and must be
otherwise reasonably reliable.

4. If a reasonable foundation is laid, an expert may testify in terms of
opinion or inference and give the reasons therefor without the use of
hypothetical questions, unless the court believes the use of a hypothetical
question will make the expert's opinion more understandable or of greater
assistance to the jury due to the particular facts of the case.

This court has routinely looked to an expert's curriculum vitae as part of its

analysis of whether an expert is qualified. See Messina v. Prather, 42 S.W.3d 753, 763

(Mo. App. W.D. 2001); Sparks v. Sparks, 417 S.W.3d 269, 279 (Mo. App. W.D. 2013).

In addition, Appellants had already elicited testimony from their other experts that they

had relied upon the opinions of Reust and Irwin in formulating their own opinions.

Therefore, the requirement of section 490.065.3 regarding whether the material was

reasonably relied upon by other experts in the field, was met.

Finally, Appellants allege that because the opinion testimony elicited in the

depositions was not stated to be "within a reasonable degree of scientific certainty," this

aspect of foundation for their testimony was not met. Appellants did not argue any issue

concerning the form of the questions posed to Irwin and Reust, or the form of their

answers, in their motion for new trial. Any such arguments are accordingly waived, Rule

78.07(a), and Appellants are entitled to only plain error review of this issue. Pursuant to

Rule 57.07, such objections must be made at the time the deposition is given or they are

waived. "The rule serves to give questioning counsel an opportunity to rephrase the

question, lay a better foundation, or clarify the question so that evidence will not be

rejected at trial because of inadvertent omissions or careless questions." Seabaugh v.

31
Milde Farms, Inc., 816 S.W.2d 202, 210 (Mo. banc 1991) (citations omitted). "Waiting

until trial to raise the objections amounts to a waiver of the claims that the answers

should not have been admitted because they were too speculative and conjectural." Id. If

Appellants had raised these objections during the deposition, Respondents may well have

rephrased the questions and avoided this issue all together. By failing to timely object or

to challenge the expert's opinions at the time of the depositions, Appellants have waived

this issue regarding the admissibility of the experts' opinions. Sanders v. Ahmed, 364

S.W.3d 195, 209 (Mo. banc 2012).

For all of the above reasons, we find no error in the trial court's ruling admitting

the expert opinion testimony of Reust and Irwin into evidence. Point II is denied.

POINT III - ADVERSE INFERENCE

Standard of Review

In Point III, Appellants allege that the trial court committed reversible error by

allowing Respondents to argue an adverse inference in closing argument based on

Appellants' failure to call Reust and Irwin as witnesses during the trial. We review the

trial court's ruling in closing argument for an abuse of discretion. Nelson v. Waxman, 9

S.W.3d 601, 606 (Mo. banc 2000) (citation omitted). "Counsel is traditionally given

wide latitude to suggest inferences form the evidence on closing argument." Id. The trial

court has broad discretion to determine whether a particular line of argument is proper.

Boshears v. Saint-Gobain Calmar, Inc., 272 S.W.3d 215, 227 (Mo. App. W.D. 2008)

(citation omitted). In exercising its discretion, the circuit court is in "the best position to

32
appraise the consequence of argument." Id. (citation omitted). The appellate court may

intervene only if it concludes that the trial court abused that discretion. Id.

Discussion

Appellants lodged their objection during Respondents closing argument after

counsel for Respondents stated the following:

Defense counsel: In the opening statement there was a comment, No. 1, Mr.
Irwin, that the impact at the Gleason vehicle was at least 60 miles an hour.
And I wanted to point that out because I don't know if you noticed it, but
there has been an effort going on in this case to not bring you information
about the accident reconstruction. Why was it that we were in this trial for
six weeks and Plaintiff never put on their own accident reconstructionist?

Plaintiffs' counsel: Objection, Your Honor. That's equally accessible by
both parties.

Court: Sustained.

Plaintiffs' counsel: Ask the jury to disregard the improper argument, Your
Honor.

Court: Overruled.

Defense counsel: Mr. Irwin, we called him in our case.

Plaintiffs' counsel: Same objection, Your Honor.

Court: Overruled.

Defense counsel: We called him in our case, and we read his opinions to
you. Plaintiffs didn't do that. We read his opinions to you --

Plaintiffs' counsel: Objection, Your Honor. That is a violation of the rule.

Court: Overruled. TR 9480

The second objection made by Appellants during closing was when Respondents

referred to "testing they didn't bother to show you in their case." Appellants objected

33
stating only "equally available." The court sustained this objection as to the testing.

Appellants objected a third time when Respondents again referred to testing that

Appellants "didn't bother to show" in their case. The objections to the testing that

Appellants "didn't bother to show" were sustained.

Prior to rebuttal, Appellants reminded the court that it had sustained their

objections when Respondents commented that Appellants had never put on their own

accident reconstructionist during trial. The following exchange then took place:

Court: What relief do you seek?

Plaintiffs' counsel: We wish to argue in retaliation, that our sole purpose, in
view of the length of the trial, was to reduce the trial dates, that we had
stated this to Court and counsel, and that any contrary argument in terms of
Plaintiffs wanting to hide any evidence from the jury, is false. And we
believe that is a fair argument in retaliation because it is the only way to
reasonably respond in a rationale way to what the inference given by
Defense counsel is, is that we tried to unfairly hide information. So we
think that this is not an outlandish request. We're not seeking that the Court
instruct the jury. We could. But I don't know that the Court would
necessarily do that. So we seek to make that argument, that the situation
was not represented accurately. Again, that we stated to the Court and
counsel that we did withdraw them for the stated purpose to reduce the trial
days, and that the Court ruled that those were equally available, and that
any contrary argument is false.

Court: So you want to be able to say something to the effect that the reason
you didn't call them is because you were just trying to move things along.

Plaintiffs' counsel: Precisely.

Court: Was there a second part of your request?

Plaintiffs' counsel: Yes, Your Honor. And any argument to the contrary is
false, and to make reference to the fact that the Court sustained that
objection, that was what that was all about. And that would be our
requested relief.

34
 TR 9526-27

"[T]he trial court has broad discretion in the area of closing arguments; such

discretion is not lightly to be disturbed on appeal." Midwest Materials Co. v. Village

Dev. Co., 806 S.W.2d 477, 492 (Mo. App. S.D. 1991) (citation omitted). The court

permitted Appellants to tell the jury that they did not call the two experts mentioned by

Respondents because they were trying to move things along and shorten the length of the

trial. They were not allowed to remind the jury that the court had twice sustained their

objection or say that any argument to the contrary was false. They were also not allowed

to tell the jury that they had informed the court and counsel of the reasons for not calling

those two experts because, as the court pointed out, the Appellants "didn't do that."

Because the court sustained the objection and granted the relief that the Appellants

sought, that is, the ability to address the adverse inference in rebuttal, the court did not

err. Appellants did not move for a mistrial. To the extent that Appellants are asserting

error in being prohibited from reminding the jury that their objection was sustained, the

jury already heard the objection and the court's ruling.

Further, the fact that the Appellants relied heavily on the opinions of these two

experts in their opening statement and throughout their case-in-chief and only withdrew

their designation of these experts following four weeks of trial, and, after withdrawing

them as experts, once again played Irwin's accident reconstruction animation during their

own closing argument, cuts against their argument that the experts were "equally

available." An expert witness is deemed to be in the control of the party who has retained

that expert. Hancock v. Shook, 100 S.W.3d 786, 797 (Mo. banc 2003). It is less than

35
compelling that a party can have an expert under his control until the trial is almost

completed and then withdraw his expert designation and later argue that the witness was

"equally available" to both parties.

Finally, by promising to produce these experts during the trial in the opening

statement to the jury and then failing to do so, it is clearly proper for Respondents to

comment about the failure to do so in their own closing argument. Robinson v.

Empiregas, Inc., 906 S.W.2d 829, 838 (Mo. App. S.D. 1995).

In sum, the only relief Appellants sought was for permission to give a reason

during closing rebuttal for not calling their accident reconstructionists. The court granted

that relief. "[B]ecause the trial court granted all the relief requested . . . there is no

adverse ruling for our review." State v. Morgan, 366 S.W.3d 565, 583-84 (Mo. App.

E.D. 2012) (citation omitted). Moreover, Rule 84.13(a) provides that "allegations of

error not presented to or expressly decided by the trial court shall not be considered in

any civil appeal from a jury tried case."

For all of the above reasons, Point III is denied.

POINT IV - BRIDGEMAN EXPERIMENTAL BRAKE TESTING

Discussion

In Point IV, Appellants argue that the trial court erred in excluding evidence of the

results of "comprehensive brake testing" on a bus similar to the one involved in this

accident which was conducted by one of their witnesses. Appellants contend that the

proper foundation was laid which showed that the testing was performed under

36
substantially similar conditions to the operations of the school bus involved in the

accident.

"The foundation for the admission of experimental tests requires a showing that

the test, in material aspects, has the requisite similarity to the conditions or occurrences at

issue in the suit." Turner v. Fuqua Homes, Inc., 742 S.W.2d 603, 614 (Mo. App. W.D.

1987). "However, substantial similarity is a flexible concept, depending upon what

conditions are important to control." Id. (citation omitted). The admissibility of

experimental evidence is within the sound discretion of the trial court; the court's ruling

will not be disturbed on appeal absent a clear showing of abuse of discretion. Id. (citation

omitted).

Before trial, Respondents filed a motion in limine to exclude the experimental

testing that Appellants intended to offer into evidence. One of the main theories of

Appellants' case was that although the brakes on the bus were equipped with automatic

slack adjusters, Bendix had sent outdated maintenance materials to the District's

mechanics, indicating that the slack adjusters should be manually adjusted, even though

they were designed to adjust themselves automatically. Appellants argued that the

manual adjustments caused the brake failure in this accident.

The testing at issue involved a retired school bus driver, Daniel Bridgeman

("Bridgeman"), whom Appellants hired to drive a school bus that was the same type as

the bus involved in the accident. Another witness, David Peck ("Peck"), designed and

supervised the testing. Bridgeman was to drive the bus out in the country, simulating

stops as if stopping at bus stops. The maintenance on the bus's brakes was to mimic how

37
the actual bus had been serviced. The trial court heard argument and preliminarily

granted the motion in limine until such time as the foundation could be properly laid at

trial. The court noted that an expert needed to provide foundation for the testing and that

Bridgeman was not an expert on brake systems.

Appellants began their direct examination of Peck by laying the foundation for his

qualifications as an expert on brake systems under section 490.065. There is no dispute

that Peck was qualified to testify as to air brake systems. Appellants then began to lay

the foundation for the experimental testing that he had supervised and about which he

wished to testify. Peck testified that he acquired a bus that was the same type as the one

involved in the accident. He replaced the brakes on it so that they were the same type as

the ones at issue. He further described various aspects of the conditions under which the

test was conducted and stated that he designed the test himself. He also testified that the

driver drove the test bus for four months as if driving a school bus route, with frequent

stops as if picking up children at stops. Appellants then proffered the witness on the

subject of the simulated test results.

After dismissing the jury, the court heard extensive argument that carried into the

next day. Respondents maintained that there were too many differences and uncertainties

in the test conditions, thereby rendering the test results inadmissible. For example, a

video of the replica bus showed the driver repeatedly slamming on the brakes throughout

his drive, yet there was evidence that the real bus driver, Thomas, was a slow driver and

was never witnessed speeding up then slamming on the brakes.

38
 The court also noted that various pieces of information were lacking, such as a

driving log. Consequently, there was no evidence as to how many miles the bus was

driven, how many days per week it was driven, how fast it was driven, the number of

stops it made each day or in total or what routes the driver took. Further, Peck stated that

the driver only drove in the country on days with good weather.

The court found that although Appellants attempted to simulate their theory of

brake wear on the replica school bus, there were too many variances, which made it not

"substantially similar" to the real bus's mechanical operation. The court noted that the

brakes on the replica bus were only manually adjusted for wear five or six times, whereas

the facts in evidence were that the brakes on the real bus had been manually adjusted

thirty to forty times. Further, the court maintained that if one of the purposes of the test

was to get the brakes on the replica bus to begin "squealing," then there would be no

evidence to equate the squeal the test bus was making with whatever noise witnesses

heard coming from the brakes of the actual bus on its daily route before the accident. The

court noted that, as to the squeal noise the Appellants were trying to duplicate, that there

was "no way to do a proper cross-examination" on that either.

Our Supreme Court addressed a similar situation in Richardson v. State Highway

& Transportation Commission, 863 S.W.2d 876 (Mo. banc 1993). There, a party wanted

to introduce a computer simulation of an accident. Id. at 881-82. After extensive

argument, the court remained "concerned that many of the basic facts underlying the

simulation were not known or reasonably certain, but rather [were] 'variables.'" Id. at

882. Despite the proponent having presented "significant testimony from the expert who

39
conducted the simulation," the trial court excluded it. Our Supreme Court found no

abuse of discretion in that ruling. Id.

Here, based on the evidence, it was within the discretion of the trial court to

determine that the differences rendered the simulated test as having not been performed

under substantially similar circumstances. "[I]f reasonable persons can differ as to the

propriety of the trial court's action, then it cannot be said that the trial court abused its

discretion." Id. (citation omitted). "Even if the trial court has abused its discretion in

excluding evidence, this Court is loathe to vacate a jury's verdict and resulting judgment

on such grounds." Lozano, 421 S.W.3d at 451.

Point IV is denied.

POINT V - HUMAN FACTORS EXPERT

Discussion

Appellants contend that the trial court erred by admitting the testimony of

Respondents' expert witness, Mark Edwards, Ph.D., ("Edwards"), concerning "the school

bus driver's standard of care and causal role in the school bus crash." In support,

Appellants point to cases from courts outside of Missouri that suggest a witness must

have extensive driving experience of the kind of vehicle in question in order for that

witness to be qualified to opine on driving standards. Respondents contend that Edwards'

testimony was within his area of expertise and that Appellants did not properly preserve

their objection to this testimony.

As we have previously stated, the admission and exclusion of expert testimony in

civil cases is governed by section 490.065. Kivland, 331 S.W.3d at 311. "The trial court

40
has discretion to determine whether a sufficient foundation was laid for the admission of

evidence . . . and this Court will not reverse absent a showing the trial court abused its

discretion." Weltmer v. Signature Health Serv. Inc., 417 S.W.3d 856, 863 (Mo. App.

E.D. 2014) (citation omitted).

Respondents called Edwards to testify at trial and began their direct examination

by eliciting foundation as to Edwards' educational background and employment

experience. Edwards testified that he had earned a Bachelor of Arts degree, a Master of

Experimental Psychology degree, and a doctorate in Human Factors Engineering.

Edwards' curriculum vitae was offered and admitted into evidence without objection.

Edwards authored hundreds of articles in the field of human factors engineering. His

employment included teaching driving instructors at Texas A&M University, working for

the National Public Services Research Institute, the Allen Corporation, the National

Highway Traffic Safety Administration, Star Mountain Corporation, and the Federal

Motor Carrier Safety Administration. Edwards currently teaches human factors

engineering classes to Ph.D. candidates at the University of Central Florida. Edwards has

testified before Congress on the topics of over-the-road truck driver regulations as well as

the effects of cell phone usage on drivers. He is a fellow of the Society of American

Traffic Safety Information Professionals and chaired the task force on truck and bus

safety for the National Academy of Science.

Despite having deposed Edwards twice, Appellants asked to voir dire the witness

regarding his qualifications to testify as an expert. Following their voir dire, Appellants

objected to Edwards, stating that he was not qualified to offer an opinion in two specific

41
areas: (1) "driver performance on a school bus," i.e., how the driver applied the pedals,

and (2) "pedal design." Appellants admitted to the court that they were not objecting to

his qualifications generally as a Human Factors expert; rather, they objected on the basis

that he was not qualified to give opinions in certain areas they deemed outside his area of

expertise. Although the causative role of "pedal misapplication" was first put forth by

Appellants' experts during their case-in-chief, Appellants argued that Edwards had no

"factual foundation" for knowing what the bus driver in this case did with her foot while

she was driving.

The trial court overruled Appellants' objection. The court then noted that because

Appellants were allowed to elicit expert testimony on how the accident could have

happened through pedal misapplication, Respondents could respond with their theory on

how it could have happened. The court concluded by noting that it would be up to the

jury to decide what the driver "actually did" with her foot.

On appeal, Appellants claim error, in part, on the admittance of "standard of care"

testimony. However, the transcript confirms that at trial, as noted above, Appellants

directed their objections only towards Edwards' opinions regarding (1) driver

performance and (2) pedal design. Regardless, a search of the record reveals that

Edwards did not testify as to the standard of care for bus drivers or for this driver.

Appellants specifically asked Edwards whether he was going to give an opinion as to "the

driver's standard of care" to which he answered "no." The only references to "standard of

care" at any point in the transcript regarding this witness were made by Appellants'

counsel. Thus, to the extent that Appellants are now alleging error by the trial court for

42
allowing testimony regarding the driver's standard of care, our review of the record

confirms that the witness did not offer such testimony.

The second area of Edwards' testimony challenged on appeal concerns that which

would suggest "a causal role" in the accident. At trial, following their voir dire of

Edwards, Appellants made numerous, overlapping objections13 but eventually narrowed

their objection to testimony over whether the driver could have misapplied the pedals, or

"driver performance."14 On appeal, Appellants identify the following testimony as

admitted in error:15

Defense counsel: Let's talk about this accident. Do you have an opinion as
to whether this accident was caused by a pedal misapplication involving the
foot being placed fully on the accelerator?

Plaintiffs' counsel: Same objection, Your Honor. Contrary to the Court's
ruling.16

Court: Overruled.

Dr. Edwards: Yes.

Defense counsel: What is your opinion?

Dr. Edwards: My opinion, it was a pedal error. It was an attempt on the --
it was a pedal error that's very typical as to what's seen when we look at
pedal errors. It's an attempt by a person that has an intention to slow the
speed of the vehicle by depressing the brake, but depresses the accelerator
instead to essentially a full throttle position. TR 8552

13
Argument on this issue alone spanned thirty-five pages of transcript.
14
On appeal, we note that "driver performance" is being referred to as a "causal role." Because Appellants
preserved their objection to testimony about whether the driver caused the accident through pedal misapplication,
we find the objection as to causation was preserved.
15
In their brief, Appellants identify other testimony in support of their argument that Respondents "ran right
over the court's ruling" but because Appellants did not object to the additional testimony as it was received, it is not
reviewable on appeal. We thus cite only to the testimony to which an objection was raised and is reviewable.
16
Appellants' objection refers to the court's ruling that no witness could say with absolute certainty what the
driver did.

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 The trial court again overruled the objection, having already heard argument on

the issue in the form of a pretrial motion in limine, a renewed motion in limine, and in a

second round of argument outside of the jury's hearing on the day Edwards testified. The

court had ample information to determine that the topic of "pedal misapplication" was

within Edwards' area of expertise.

As for Appellants' contention that the testimony was "contrary to the court's

ruling," it becomes clear when reading the entire exchange that the court intended to

prohibit both sides' experts from stating with absolute certainty what the driver did or did

not do. Indeed, the court noted that "no expert" can decide what the driver did with her

foot; experts can only opine as to what "could have happened" or what the accident is

"consistent with."

Based on Edwards' qualifications as reflected in the record, the trial court was well

within its discretion in finding that Edwards was qualified to opine as to whether the facts

of the accident were consistent with pedal misapplication. Experts for both sides argued

that pedal misapplication could have caused the accident. Appellants argued that BOTH

the brake and the accelerator were applied at the same time; Respondents argued that

only the accelerator was applied. We find no error in this ruling.

Based on all of the above, Point V is denied.

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 CONCLUSION

Respondent Thomas Built Buses' motion to dismiss the appeal based on

Appellants' failure to follow Rule 84.04(c) which was taken with the case, is denied. The

judgment of the trial court is affirmed.

__________________________________
Gary D. Witt, Judge

All concur

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