Tort Law

R. Max Humphreys, Esquire

Testimony that Plaintiff had a 45% chance of future surgery as a result of her injuries was admissible. Westerman v. Shogren, No. 74066 (Mo. App. W.D., June 19, 2012), Martin, J.

Plaintiff suffered injuries from an automobile accident. Plaintiff’s medical expert testified that Plaintiff had pre-existing degenerative joint disease, which was non-symptomatic until after the automobile accident and that a result of the accident, there was a 45% chance she would require future neck surgery. Defendant did not object to that testimony.

The medical expert also testified that he himself had degenerative joint disease which was non-symptomatic. Defendant did object to that testimony as irrelevant which was overruled.

Defendant filed a motion for a new trial and one of the reasons given was that the verdict was not supported by the evidence and that the jury awarded damages for speculative future neck surgery where the only evidence was that Plaintiff only had a 45% chance on needing neck surgery. The court of appeals ruled that since Defendant made no objection to this testimony, the issue is not preserved for appeal because the trial court did not have an opportunity to cure any problem with such testimony. Defendant also did not request or tender a withdrawal instruction withdrawing that evidence from the jury.

Defendant’s second argument was that the court erred in overruling their objection to the expert witness’s testimony about his own neck condition. Again, the Defendant did not properly preserve the issue but the court ruled that even had it been preserved, there was no error in allowing the expert to testify about this own condition and the fact his neck did not hurt just because he had the degenerative disease.