In the
Missouri Court of Appeals
Western District
STEVEN WALKER,
WD79217
Appellant, OPINION FILED:
v.
OCTOBER 18, 2016
FAITH KELLEY,
Respondent.
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Marco Roldan, Judge
Before Division One: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.
Steven Walker appeals from a judgment entered upon a jury verdict finding in his favor
on his negligence claim against Faith Kelley and awarding him $1.00 in damages. He contends
on appeal that the circuit court erred in denying his motion for new trial, arguing that the jury’s
verdict of $1.00 was grossly inadequate because his medical expenses were $11,279.62 and the
jury’s award of only $1.00 was a result of jury bias, prejudice, or other misconduct. We affirm.
On December 21, 2009, Faith Kelley was driving her stepmother’s 1989 Chevrolet
Corsica. At approximately 4:30 in the afternoon, while traveling northbound on River Boulevard
in a residential neighborhood in Independence, Kelley failed to recognize that Walker had
stopped for traffic and hit him from behind. Kelley testified that she was going twenty to
twenty-five miles per hour just before the impact of the accident. She did not have time to apply
her brakes before she hit the rear of Walker’s vehicle.
Walker testified that, just prior to the accident he was stopped for a vehicle ahead of him
that was making a left turn. There was no advance warning of the collision, and the impact was
of such force that Walker’s head was thrown back and broke out the cab window of his pickup
truck.
Walker was transported from the scene of the accident by ambulance and received
treatment at Centerpoint Emergency Department. His initial complaints included head, neck, and
back pain. A computed tomography (CT) scan of his neck showed no fractures and mild
arthritis. He was released the same day. He received follow-up care from his primary care
physician, Dr. Mouse. Mouse referred Walker to Dr. Curtis Johnson, a physiatrist with a
specialty in anesthesiology and pain medicine. Walker’s first visit with Johnson occurred on
January 6, 2010, approximately two weeks following the accident. At that time, Walker
complained of a very stiff neck and problems with moving his head in any direction. Walker also
reported headaches, floaters in his eyes, ringing in his ears, sensitivity to bright lights, low back
pain and numbness, cramping in his right leg, and numbness in his left foot. Johnson believed
Walker’s complaints to be due to the injuries received in the December 21, 2009, accident.
Johnson ordered an MRI of Walker’s neck. Johnson noted that Walker had been taking
Vicodin and Flexiril, narcotic pain medications prescribed by the emergency room doctors.
Johnson performed a physical exam and concluded that Walker was experiencing neck pain
caused by the motor vehicle accident and that he had degenerative disc disease of the lumbar
spine causing left-sided lumbar radiculitis. Johnson did not believe that Walker’s degenerative
disc disease was caused by the motor vehicle accident. However, he did believe that the new
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onset of lumbar radiculitis was from the accident. Johnson considered Walker’s biggest concern
to be his neck and provided a cervical epidural shot for treatment on January 6, 2010.
Following the initial cervical epidural shot, Walker returned for a follow-up visit on
January 20, 2010. Walker described feeling a 20% improvement from the shot. On his second
visit, Johnson reviewed the MRI previously ordered and noted a bulging disc at C5-6. This was
not present in an MRI conducted at Centerpoint on the date of the accident. Johnson testified
that the first MRI film showing no broad based disk bulging appeared to be a correct report of
Walker’s condition the day of the accident. Johnson testified that there was no way of knowing
whether the motor accident caused the bulging C5-6 disks. Johnson gave Walker another
epidural injection in his neck. On February 3, 2010, Johnson gave Walker a third and final
epidural injection and enrolled Walker in therapy. Johnson focused on Walker’s complaints
regarding his neck and did not treat him for his back. Johnson did not see Walker again for
nearly five years when he was re-evaluated on September 23, 2015, prior to Johnson giving his
deposition in this case. Johnson was unaware of any intervening medical history Walker may
have had between the final 2010 visit and the 2015 visit.
On the September 23, 2015, visit, Walker reported to Johnson that he was still having
neck pain with some radiation into his left shoulder. Walker had not received any treatment other
than physical therapy since his last visit with Johnson in 2010. Walker told Johnson that he was
experiencing stiffness at the base of his neck and upper back and was using ibuprofen (Motrin)
for pain relief as needed. Johnson performed a physical examination and noted Walker to be
tender in the left cervical area with decreased range of motion. Johnson concluded that Walker
was experiencing chronic neck pain from the 2009 automobile accident. Because five years had
passed since the accident, Johnson believed the neck pain had become permanent. Johnson
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suggested additional treatment including a change of medication from Motrin to Meloxicam and
cervical facet injections. These injections were designed to pinpoint the facet joints that may
have become arthritic with the goal of decreasing pain and improving range of motion. Johnson
did not consider Walker to be a surgical candidate for his neck pain. His final diagnosis was
chronic neck pain from the automobile accident.
When Johnson was asked at trial why five years elapsed between the 2010 visit with
Walker and the 2015 visit, Johnson testified that he believed that Walker wanted to be evaluated
for his upcoming case. Johnson testified that he was unaware of other treatment Johnson may
have received so he was unable able to testify that any other treatment that Walker received was
reasonable and necessary.
Walker testified at the trial. He testified that he had a work injury to his lower back in
1993 that took approximately three years to heal. Prior to and after the motor vehicle accident he
visited the chiropractor periodically. Walker was working for Dependable Hauling doing
physical labor the day of the accident. Walker claimed that he missed work for a period of time
following the collision with Kelley but had no verification of wage loss from his employer. He
admitted that he ultimately went back to work and resumed his former duties. Walker testified
that, after working for Dependable Hauling he worked for a “temp company” doing a variety of
jobs in 2010 and 2011. He went to work for Volt doing physical labor including sweeping and
shoveling and he testified that there was nothing at Volt that he could not do physically. After
working for Volt, Walker worked for Pro Logistics running a forklift, picking and pulling orders,
stocking, warehousing, and sweeping the floor. He testified that he had no trouble doing that
work. Walker then took a job in construction repurposing an existing office building and an
indoor soccer facility. Following that he went to the Kansas City Power and Light boot camp for
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apprentice lineman and performed very physical work while there. Thereafter he worked for
Foutch Construction and Shotts Construction where he performed hard physical labor. Finally,
Walker obtained a job at KCPL as an apprentice lineman. This work requires digging six to eight
foot holes in the ground with posthole diggers, hauling equipment, and climbing poles to put
equipment on the poles. Walker testified that there is no activity he could do before the accident
that he cannot do now.
The jury initially returned a verdict for Walker but awarded no damages. The circuit
court rejected the verdict on the grounds that it was inconsistent according to the law and the jury
was instructed to be guided by the damages instruction which provided that “[i]f you find in
favor of Plaintiff, then you must award Plaintiff such sum as you believe would fairly and justly
compensate Plaintiff for any damages you believe Plaintiff sustained and is reasonably certain to
sustain in the future as a direct result of the occurrence mentioned in the evidence.” The jury
deliberated further and returned with a damage award of $1.00. On October 28, 2015, the court
entered Judgment on the verdict and Walker filed his motion for new trial on November 2, 2015.
On November 17, 2015, the court overruled Walker’s motion for new trial. This appeal follows.
“Denial of a new trial based on an inadequacy in the jury verdict is reviewed for abuse of
discretion.” Lewey v. Farmer, 362 S.W.3d 429, 435 (Mo. App. 2012). “A trial court abuses its
discretion when its ruling is clearly against the logic of the circumstances before it and when the
ruling is so arbitrary and unreasonable as to shock the appellate court’s sense of justice and
indicate a lack of careful consideration.” State v. Ward, 242 S.W.3d 698, 704 (Mo. banc 2008).
“There is no abuse of discretion if reasonable minds could disagree about the propriety of the
trial court’s decision.” Lewey, 362 S.W.3d at 435. Abuse of discretion with regard to an
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inadequate jury verdict occurs only when the jury verdict is so shockingly inadequate as to
indicate that it is a result of passion and prejudice or a gross abuse of its discretion. Id.
In Walker’s sole point on appeal he claims that the circuit court erred in denying his
motion for new trial, arguing that the jury’s verdict of $1.00 was grossly inadequate in that
Walker’s medical expenses were $11,279.62 and the jury’s award of only $1.00 was a result of
jury bias, prejudice, or other misconduct. Walker argues that the court’s rejection of the jury’s
$0.00 verdict but acceptance of the jury’s $1.00 verdict was against the weight of the evidence
because, even if the jury chose not to award compensation for pain, suffering, or disability, the
jury should have at least awarded the undisputed medical expenses Walker incurred from the
accident. We find no abuse of discretion.
First, we may only consider Walker’s claim that the $1.00 award demonstrates juror bias,
prejudice, passion, or misconduct and in so doing we consider only the evidence which supports
the trial court’s ruling denying the motion for new trial. Rains v. Herrell, 950 S.W.2d 585, 588-
589 (Mo. App. 1997). We will not review Walker’s argument that the verdict was against the
weight of the evidence.
As explained in Homeyer v. Wyandotte Chemical Corp., 421 S.W.2d 306 (Mo.
1967): In a tort action the determination of the amount to be awarded for personal
injuries is a matter resting primarily in the discretion of the jury in that it involves
the credibility of witnesses and the weight and value to be given their testimony
on a fact issue. The trial court has wide discretion in ruling on a motion for new
trial which alleges that the damages awarded are inadequate since that court may
take into consideration the credibility of the witnesses and may weigh the
evidence. The appellate court, however, may not pass on the weight of the
evidence in reviewing the action of the trial court.
Id. (internal citations omitted); see also Lewey v. Farmer, 362 S.W.3d 429, 435 (Mo. App. 2012).
Second, we consider the verdict in light of the entire record so as to better ascertain the
jury’s intent, and construe the verdict liberally so that it may be given effect where possible.
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Downey v. University Internists of St. Louis, Inc., 154 S.W.3d 339, 342-343 (Mo. App. 2004).
There are two lines of authority in cases where unliquidated damages are sought and a jury finds
for a plaintiff but assesses no damages. Id. at 342. “Our Supreme Court has recognized the
existence of these two lines of cases, but has not resolved the split of authority.” Id. One line of
cases, which includes the federal courts and some state jurisdictions, enters judgment in favor of
the defendant by considering the award of zero monetary damages as a verdict for the defendant.
Id. The other line of cases, which includes Missouri appellate courts, finds the verdict
inconsistent and invalid. Id. Consequently, we find trial court error where the court does not call
the defect to the jury’s attention and return the matter to the jury for further deliberations to
correct the verdict or to render a new one. Jenkins v. Revolution Helicopter Corp., Inc., 925
S.W.2d 939, 943 (Mo. App. 1996).
Here, the trial court recognized the initial $0.00 verdict as being inconsistent with a
verdict in favor of Walker on his negligence claim and returned the matter to the jury for further
deliberations. In so doing, the court again advised the jury, via the damages instruction, to
“award Plaintiff such sum as you believe would fairly and justly compensate Plaintiff for any
damages you believe Plaintiff sustained and is reasonably certain to sustain in the future as a
direct result of the occurrence mentioned in the evidence.” The jury returned from deliberations
with a damages award of $1.00.
Walker argues that the $1.00 award is tantamount to a $0.00 award and, therefore, the
award is inconsistent and “the jury’s prejudice can be inferred from the inadequacy of this
verdict.” He contends that, at the very least, the evidence showed that he required reasonable
and necessary medical treatment following the motor vehicle accident in the form of ambulance
and emergency room services and that “[a]ny reasonable and rational approach to the assessment
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of damages would require an award of at least the undisputed medical expenses.” In light of the
record before us, we cannot agree.
With regard to damages, Walker suggested to the jury in closing that a $100,000 verdict
would be appropriate. He argued that he was not claiming a bulging disk or herniated disc due to
the accident, he was claiming “cervicalgia, a fancy medical word that means that he has chronic
neck pain” from the accident. To prove his medical expenses, Walker entered Plaintiff’s Exhibit
9 into evidence during his testimony. Exhibit 9 lists six different providers of services, includes
a column labeled “AMOUNT INCURRED” with a TOTAL sum of $25,895.97, and a column
labeled “AMOUNT NECESSARY TO SATISFY PLAINTIFF’S OBLIGATION FOR
MEDICAL” with a TOTAL sum of $11,279.62.
During deliberations the jury asked the court to see all of the evidence and asked how the
medical bills were satisfied. The court responded by sending the jury all exhibits and indicated
that, with regard to the medical bills, the jury was to be guided by the evidence and the
instructions. After further deliberations, the jury then asked the court if it could “find for the
plaintiff and not award money.” The court discussed with counsel that such would result in an
inconsistent verdict and, therefore, the jury needed to be properly instructed to avoid this result.
In consultation with counsel, the court responded that the jury was to be guided by Instruction
Number 6 which stated that, if the jury found for the plaintiff, it must award the plaintiff such
sum as the jury believed would fairly and justly compensate for any damages sustained and
reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the
evidence. The jury found in favor of Walker and assessed damages at $0.00. The jury was
instructed that its verdict was inconsistent under the law and was required to deliberate further
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and to be guided by Instruction Number 6. The jury returned with a verdict in favor of Walker
and assessed damages at $1.00. The court accepted the jury’s verdict.
“The size of the jury’s award alone does not establish that it resulted from bias or passion.
Rather, the party claiming the inadequacy of a verdict must demonstrate that some trial error or
misconduct of the prevailing party was responsible for prejudicing the jury.” Tomlin v. Guempel,
54 S.W.3d 658, 660 (Mo. App. 2001). Walker fails to do so here. Contrary to Walker’s
suggestion on appeal, the jury was not bound to return a damages verdict for at least the amount
reflected in Plaintiff’s Exhibit 9 for the “amount necessary to satisfy plaintiff’s obligation” for
ambulance and emergency room services. Although Walker characterizes Plaintiff’s Exhibit 9 as
“undisputed medical services” representing a stipulation with regard to the minimal amount of
recovery he was entitled to if the jury found Kelley negligent, the record suggests otherwise.
While Plaintiff’s Exhibit 9 is titled “Stipulation of Plaintiff and Defendant,” it appears from the
record that the only “stipulation” between the parties represented in Plaintiff’s Exhibit 9 was
with regard to how medical expenses would be entered into evidence and presented at trial to the
jury.
Pursuant to Section 490.715, RSMo Cum. Supp. 2015, the value of medical treatment
rendered, as admissible at trial, is the amount necessary to satisfy the financial obligation to
healthcare providers. The amount of medical bills actually incurred is not automatically
admissible. Deck v. Teasley, 322 S.W.3d 536, 539 (Mo. banc 2010). However, Section 490.715
allows a party to rebut the presumption that the value of medical treatment rendered is only the
amount necessary to satisfy the financial obligation by moving the court to hear additional
evidence on the matter, including evidence regarding the actual medical bills incurred. Id. If the
presumption is rebutted, the fact-finder receives the issue free from any presumption and
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considers all of the evidence offered, including the facts that gave rise to the presumption as well
as the facts to the contrary. Id. at 540. “If the presumption is not rebutted, then the only
evidence of the value of medical treatment rendered is the dollar amount necessary to satisfy the
financial obligation to the health care providers.” Id.
Here, it appears that, in lieu of only submitting the amount necessary to satisfy Walker’s
obligations for medical expenses pursuant to Section 490.715 or attempting to rebut Section
490.715’s presumption by presenting additional evidence to the trial judge, Plaintiff’s Exhibit 9
was an agreement reached by the parties with regard to how the value of medical treatment
rendered would be presented to the jury. Plaintiff’s Exhibit 9 was submitted to the jury showing
the amount necessary to satisfy the financial obligation to health care providers as well as actual
medical expenses incurred.
While Plaintiff’s Exhibit 9 was entered into evidence without objection with an indication
that the parties had stipulated to the exhibit, we find nothing in the record to suggest that Kelley
ever stipulated to responsibility for a given amount of damages if found negligent by the jury.
Kelley argued at trial that, although she did collide with Walker’s vehicle, “the complaints that
[Walker] has now are not reasonably related to what he says happened to him on December 21st.”
Kelley further argued that, during the five years after the accident, Walker made only ten
chiropractor visits, had three visits to a pain management specialist and some physical therapy,
and had no lost wages due to the accident. Kelley argued that Walker never stopped engaging in
strenuous work-related activities after the accident and continues to engage in such activities.
In addition, Kelley was permitted – without objection – to present evidence, and to argue
to the jury, that Walker’s medical bills had been paid, and that the jury should not award damages
for those bills, because of the fact of payment. In opening statement, Kelley’s counsel stated
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without objection, “The emergency medical care and treatment seemed to be necessary and
appropriate, but that emergency medical care and treatment as I’ve indicated to you is an expense
that’s been incurred and resolved.” On cross-examination, Kelley’s counsel asked Walker about
Exhibit 9: “And those amounts have been paid, haven’t they?” to which Walker agreed. Tr. 86.
Based on that testimony, Kelley was able to argue in closing, again without objection, that the
jury should not award Walker his medical costs, because they were “satisfied by payment of
$11,279.62”:
The plaintiff offered you an exhibit that showed the total charges or expenses for
his injuries is $25,895.97. The same exhibit shows those charges were satisfied
by payment of $11,279.62.
So I would submit to you that considering those damages would not be the
proper thing to do in terms of evaluating what the damages are in this case if, in
fact, you believe that damages are merited by the claims that you have heard and
are substantially related to the evidence that you’ve heard.
Tr. 121 (emphasis added). Because Walker did not object to this evidence and argument,
or challenge it on appeal, we need not decide whether it was proper. Nevertheless, given
this evidence and argument, the jury was told that it could refuse to award Walker the
medical costs he had incurred, because those costs had been “paid,” “satisfied by
payment,” and “resolved.”
We also find nothing in the record to suggest that the jury’s damages award of $1.00 was
the result of jury bias, prejudice, or other misconduct. The record is clear that the jury
considered medical expenses prior to returning its verdict; the jury made a specific inquiry with
regard to how medical expenses had been satisfied. The jury was instructed after returning a
$0.00 damages award that it must award fair and reasonable compensation due to finding that
Kelley’s negligence caused damage to Walker. We presume that the jury followed this
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instruction. Rider v.The Young Men’s Christian Association of Greater Kansas City, 460 S.W.3d
378, 393 (Mo. App. 2015). Consequently, the jury’s ultimate award of $1.00 evinces that the
jury either found damages negligible, or found that Walker had already been fairly and
reasonably compensated for the damage Kelley caused Walker. Liberally construing the verdict
in light of the entire record, either of these conclusions was plausible.
We conclude, therefore, that the circuit court did not abuse its discretion in denying
Walker’s motion for new trial as Walker has failed to prove that the jury’s award was grossly
inadequate or that the $1.00 damages award was a result of jury bias, prejudice, or other
misconduct. We affirm the circuit court’s judgment.
Anthony Rex Gabbert, Judge
All concur.
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