                                              In the
                           Missouri Court of Appeals
                                     Western District

                                                  
ORSON WOLF,                                       
                                                     WD78606 and
               Appellant-Respondent,                 WD78619
v.                                                   OPINION FILED:
                                                  
MIDWEST NEPHROLOGY                                   April 19, 2016
CONSULTANTS, PC.,                                 
                                                  
               Respondent-Appellant.              
                                                  


                 Appeal from the Circuit Court of Jackson County, Missouri
                           The Honorable Bryan Round, Judge

                                 Before Division Three:
       James Edward Welsh, P.J., Thomas H. Newton, and Anthony Rex Gabbert, JJ.


       Orson Wolf appeals from the circuit court's judgment in a wrongful death action, in which

a jury awarded Wolf $459,429.02 for past economic damages but did not award noneconomic

damages for the pain and suffering endured by the decedent prior to his death. Wolf appeals

asserting that the circuit court erred in denying his motion for new trial because the failure to

award past noneconomic damages was an abuse of discretion. Midwest Nephrology Consultants,

Inc., cross-appeals asserting that the circuit court erred (1) in denying its motion for judgment

notwithstanding the verdict because Wolf failed to establish the amount of damages with

reasonable certainty and (2) in denying its alternative motion for new trial because the verdict
was against the weight of the evidence and because the circuit court excluded relevant evidence

and admitted speculative expert testimony. We affirm the circuit court's judgment.

       On July 25, 2008, Carl Brooks went to Midwest Nephrology Consultants for a procedure

known as a fistulagram. A fistulagram is used to diagnose problems with a port used to facilitate

dialysis. At the time of the procedure, Brooks was 79 years old and had been on dialysis since

2006. During the procedure, Brooks was sedated. After the procedure and during the discharge

process, a nurse left Brooks unattended while Brooks dressed himself. As Brooks was sitting on

the bed attempting to put on his shirt, he fell and fractured his hip.

       Brooks underwent surgery for his hip at Research Medical Center. On July 29, 2008, he

was transferred from Research to the Lifecare Center of Grandview. By August 13, 2008,

Brooks developed a pressure ulcer on his coccyx (tailbone) and his heels from his immobility.

He also became severely malnourished due to the pain pills affecting his appetite. Because his

wounds were getting worse, Brooks was transferred to Kindred Hospital, a long-term/acute

hospital. In response to the antibiotics he was taking, Brooks developed diarrhea which

adulterated the ulcer on his coccyx. In December 2008, Brooks underwent a procedure to

improve blood flow to his leg, a surgical procedure to close the wound on his coccyx, and skin

grafts to his heels. Because of continued diarrhea and contamination of the surgical site, Brooks

underwent a colostomy in February 2009 to divert the flow of feces away from the ulcer on his

coccyx. Later in February, another attempt was made to close the wound on Brook's sacrum,

which was unsuccessful. Thereafter, on March 19, 2009, Brooks was transferred to the Missouri

Veteran's Home in Cameron, Missouri. Brooks died on April 19, 2009.




                                                  2
       On January 7, 2011, Wolf filed a wrongful death suit Midwest Nephrology and others1 for

the death of his half-brother, Carl Brooks. Wolf alleged that Brooks's fall at Midwest

Nephrology, which resulted in a broken hip, the development of pressure ulcers, and Brooks's

eventual death, was the result of Midwest Nephrology's negligence in leaving Brooks unattended

to dress himself following his sedation from the fistulagram procedure. After a trial, the jury

returned a verdict in favor of Wolf in the amount of $459,429.02 for past economic damage but

did not award noneconomic damages for the pain and suffering endured by Brooks prior to his

death. Wolf appeals, and Midwest Nephrology cross-appeals.

       In his only point on appeal, Wolf contends that the circuit court erred in denying his

motion for new trial because the failure to award past noneconomic damages was an abuse of

discretion. In particular, Wolf asserts that, because there was ample undisputed evidence

regarding Brooks's pain and suffering between the time of his fall and his death, the circuit court

abused its discretion in awarding damages for medical expenses without awarding damages for

pain and suffering. We disagree.

       We will reverse the circuit court's decision to deny a motion for new trial on the basis that

a jury award is inadequate only if we find that the circuit court abused its discretion. Morgan

Publications, Inc. v. Squire Publishers, Inc., 26 S.W.3d 164, 176 (Mo. App. 2000).

       In support of his claim that he is entitled to damages for pain and suffering, Wolf relies

upon a contention that "[g]enerally, an award of medical expenses alone without an award for

pain and suffering is invalid and will be set aside 'almost as a matter of course.'" Meier v.

Schrock, 405 S.W.3d 31, 35 (Mo. App. 2013) (quoting Davidson v. Schneider, 349 S.W.2d 908,



       1
           At the time of trial, Midwest Nephrology was the only remaining defendant.

                                                         3
913 (Mo. 1961)).2 Indeed, in Davidson, the Missouri Supreme Court noted this principle, but

explained, "This of course is but a further application of the general rules regarding inadequate

verdicts, the jury having found the issue of liability in favor of the plaintiff 'may not give any

verdict it pleases[;]' it is . . . bound to award damages commensurate with the nature and extent

of the injuries." 349 S.W.2d at 913 (citations omitted). Although acknowledging the general

principal that awards of medical expenses only without an award for pain and suffering are

invalid, the Davidson court noted that the jury in the case before it was told that they "may" take

into consideration numerous things in awarding general damages, including damages for pain

and suffering. Id. In affirming the jury's verdict of $531.50, the Davidson court stated that "the

jury could find from the conflicting evidence that the plaintiff's complaints were all subjective,

that his injuries were in fact trivial or not serious in the end result and they have awarded him his

actually established financial losses." Id. The Davidson court concluded that "'the verdict can be

reasonably accounted for on the theory that the jury believed only enough of plaintiff's evidence

to fix liability' and having commensurately made an award there is no occasion for this court's

interference." Id. (citation omitted); see also Root v. Manley, 91 S.W.3d 144, 146 (Mo. App.

2002) (a jury verdict awarding medical expenses and no damages for pain and suffering was not

inadequate as the jury could have believed that plaintiff's pain and suffering was "minimal or

non-existent").

        Therefore, the Davidson case makes clear that there is no bright line requiring reversal of

cases where the jury awards medical expenses but does not award damages for pain and

suffering. Such a disposition by the jury may be reversed but only if the verdict is determined to

be inadequate. If there is a bright-line test at all, it is merely a bright-line that triggers an

        2
            The Meier case was a bench tried case, unlike the other cases discussed herein.

                                                            4
inadequate verdict analysis. Indeed, the parties do not cite any cases where the court reversed a

verdict based solely on the fact that the jury awarded medical expenses and no damages for pain

and suffering. In all the cases, the court conducted an inadequate verdict analysis.

       In fact, this court in Wright v. Long, 954 S.W.2d 470 (Mo. App. 1997), dealt with this

precise issue of whether the circuit court abuses its discretion in denying a motion for new trial

when a jury awards damages for medical bills only despite extensive evidence of pain and

suffering. Id. at 471. In that case, we emphasized, "'[t]he day is past when Missouri appellate

courts closely scrutinize amounts awarded by juries for personal injuries.'" Id. at 472 (quoting

Bilderback v. Skil Corp., 856 S.W.2d 73, 76 (Mo. App. 1993)). We explained, "[b]ecause of the

special importance of weighing witness credibility and testimony in setting damages, the

determination as to what amount of damages should be awarded in a personal injury action falls

primarily within the discretion of the jury." Wright, 954 S.W.2d at 472. Further, we noted that

"[w]here the verdict reached by the jury has the approval of the trial court, its discretion is

practically conclusive." Id.

       In Wright, the jury awarded damages for medical bills only and did not include an award

for pain and suffering and loss of enjoyment of life. Id. Plaintiff claimed that "the jury could not

have believed that he was injured without believing that he incurred considerable pain and

suffering." Id. The Wright court concluded that the plaintiff's reasoning was "faulty" because

"[t]he jury was under no obligation to believe the evidence of pain and suffering or loss of

enjoyment of life[.]" Id. at 473. The Wright court found that the award of damages was within

the evidence presented at trial and held that the circuit court did not abuse its discretion in

denying the motion for new trial. Id. at 474.



                                                  5
         Thus, to the extent that Wolf is contending that the circuit court should have granted a

new trial solely because the jury awarded medical expenses only without an award for pain and

suffering, his contention is without merit. 3 As was the case in Wright, the jury was under no

obligation to believe the evidence of pain and suffering, and the award of damages was within

the evidence presented at trial.

         Moreover, we note that "Missouri does not recognize a common-law claim for wrongful

death." Sanders v. Ahmed, 364 S.W.3d 195, 203 (Mo. banc 2012). Indeed, "'a claim for damages

for wrongful death is statutory; it has no common-law antecedent.'" Id. (quoting State ex rel.

Diehl v. O'Malley, 95 S.W.3d 82, 88 (Mo. banc 2003)). Section 537.080.1, RSMo 2000,

provides in relevant part:

                 Whenever the death of a person results from any act, conduct, occurrence,
         transaction, or circumstance which, if death had not ensued, would have entitled
         such person to recover damages in respect thereof, the person or party who, or the
         corporation which, would have been liable if death had not ensued shall be liable
         in an action for damages, notwithstanding the death of the person injured[.]

         As a statutorily created cause of action, the legislature has the power to define the remedy

available for a wrongful death action. Sanders, 364 S.W.3d at 203; Estate of Overbey v. Chad

Franklin Nat'l Auto Sales North, LLC, 361 S.W.3d 364, 376 (Mo. banc 2012); Scott v. Blue

Springs Ford Sales, Inc., 176 S.W.3d 140, 141-42 (Mo. banc 2005). As such, the legislature set

forth the damages to be determined by the jury in section 537.090, RSMo Cum. Supp. 2013.

That provision provides:


         3
          Wolf is essentially claiming that the jury's award of medical damages without an award for pain and
suffering resulted in an inconsistent verdict. When a party believes a verdict is inconsistent, the proper method for
seeking relief is to ask the circuit court to return the jury for further deliberations. China Worldbest Group Co., Ltd.
v. Empire Bank, 373 S.W.3d 9, 13 (Mo. App. 2012). "If the objecting party does not request that the jury be
returned for further deliberations, the claim of error is waived." Id. Wolf did not request that the jury be sent back
to deliberate further. He, therefore, waived any claim of error with respect to any alleged inconsistency in the
verdict.

                                                           6
               In every action brought under section 537.080, the trier of the facts may
       give to the party or parties entitled thereto such damages as the trier of the facts
       may deem fair and just for the death and loss thus occasioned, having regard to
       the pecuniary losses suffered by reason of the death, funeral expenses, and the
       reasonable value of the services, consortium, companionship, comfort,
       instruction, guidance, counsel, training, and support of which those on whose
       behalf suit may be brought have been deprived by reason of such death and
       without limiting such damages to those which would be sustained prior to
       attaining the age of majority by the deceased or by the person suffering any such
       loss. In addition, the trier of the facts may award such damages as the deceased
       may have suffered between the time of injury and the time of death and for the
       recovery of which the deceased might have maintained an action had death not
       ensued.4

The jury, therefore, has "extraordinarily wide discretion" in determining the amount of recovery

under section 537.090 in wrongful death actions. Aubuchon v. LaPlant, 435 S.W.2d 648, 650

(Mo. 1968).

       Section 537.090 states that the jury "may award" damages for the decedent's suffering

between the time of death and the time of the injury. The word "may" dictates that awarding

such damages is permitted but that it is not mandatory. "It is the general rule that in statutes the

word 'may' is permissive only, and the word 'shall' is mandatory." State ex inf. McKittrick v.

Wymore, 119 S.W.2d 941, 944 (Mo. banc 1938). "We have no authority to read 'shall' into

[section 537.090] unless its insertion is plainly indicated." Collier v. Roth, 468 S.W.2d 57, 61

(Mo. App. 1971). The General Assembly could have used the word "shall" if it had intended to

require that all juries compensate wrongful death plaintiffs for the damages the deceased may

have suffered between the time of injury and the time of death, but the General Assembly chose

the word "may" instead. Because there is no contrary intent expressed in section 537.090, we

read the word "may" as permissive and not mandatory. Damages for pain and suffering were not


       4
           We added the emphasis.


                                                  7
mandatory under section 537.090.5 Indeed, under section 537.090, the jury has the discretion to

not award any damages let alone damages for pain and suffering. The circuit court, therefore,

did not abuse its discretion in denying Wolf's motion for new trial.

        In its cross-appeal, Midwest Nephrology contends that the circuit court erred in denying

its motion for judgment notwithstanding the verdict because Wolf failed to establish the amount

of damages with reasonable certainty. In particular, Midwest Nephrology complains that no

witness discussed Brooks's medical bills in the presence of the jury and that the stipulation given

to the jury concerning the amounts billed and paid for medical services contained no information

about whether any of those bills were connected to Midwest Nephrology's alleged negligence.

        Before considering the merits of Midwest Nephrology's first point on appeal, we must

first consider whether the issue is preserved for our review. Mansfield v. Horner, 443 S.W.3d

627, 638 (Mo. App. 2014). "Because a judgment notwithstanding the verdict is a motion to have

judgment entered in accordance with a motion for directed verdict, 'a sufficient motion for a

directed verdict is required to preserve the motion for judgment notwithstanding the verdict and

for appeal.'" Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 43-44 n. 21 (Mo. App. 2013)

(citation omitted). Rule 72.01(a) requires that a motion for directed verdict "state the specific

grounds therefore." "A party cannot save an insufficient motion for directed verdict by making

specific allegations in the motion for JNOV." Merseal v. Farm Bureau Town & Country Ins. Co.

of Mo., 396 S.W.3d 467, 471 (Mo. App. 2013). "'[I]ssues not raised in a motion for directed

verdict, but raised in the motion for JNOV, are not preserved for appellate review of the motion


        5
          We note that the cases upon which Wolf relies--Meier v. Schrock, 405 S.W.3d 31 (Mo. App. 2013), and
Turner v. Sorrels, 624 S.W.2d 82 (Mo. App. 1981)--were common law personal injury actions and not wrongful
death actions. As noted previously, wrongful death cases are governed by the wrongful death statutes and not by
common law.

                                                        8
for JNOV.'" Wagner v. Mortg. Info. Servs., Inc., 261 S.W.3d 625, 639 n.13 (Mo. App. 2008)

(citation omitted). Midwest Nephrology failed to raise in its motion for directed verdict that

Wolf failed to present substantial evidence to establish the amount of damages that were caused

by Midwest Nephrology's alleged negligence. Midwest Nephrology, therefore, was precluded

"'from obtaining a judgment notwithstanding the verdict in its favor on these grounds'" and is

further precluded "'from obtaining appellate review of the trial court's failure to enter judgment

notwithstanding the verdict on these grounds.'" Delacroix, 407 S.W.3d at 44 n. 21 (citation

omitted).

       As to the second point in its cross-appeal, Midwest Nephrology combines three separate

contentions in one point relied on. It asserts that the circuit court erred in denying the motion for

new trial because: (1) the verdict was against the weight of the evidence; (2) the circuit court

erred in excluding relevant evidence that would have shown that there were no unpaid medical

bills, and (3) the circuit court erred in admitting speculative expert testimony concerning

causation. In particular, the point said:

       The trial court erred in denying Defendant's alternative motion for a new trial on
       all issues, because the verdict was against the weight of the evidence, and because
       the trial court erred in excluding relevant evidence and admitting speculative
       expert testimony, in that the jury returned a verdict that subtracted amounts paid
       from amounts billed and thus could not have properly measured Plaintiff's
       medical damages, in that this improper verdict was likely caused by the exclusion
       of evidence that would have shown that there were no unpaid medical bills, and in
       that the trial court allowed a medical expert to give a causation opinion even
       though the expert himself admitted that he was speculating.

The point relied on is most certainly multifarious. "'A point relied on should contain only one

issue, and parties should not group multiple contentions about different issues together into one

point relied on.'" Rouse v. Cuvelier, 363 S.W.3d 406, 419 (Mo. App. 2012) (citation omitted).

Multifarious points preserve nothing for appellate review. Rogers v. Hester ex rel. Mills, 334

                                                  9
S.W.3d 528, 536 (Mo. App. 2010). The point relied on combines issues that would involve

separate rulings by the circuit court and would require determinations concerning whether timely

and sufficient objections were made and whether proper offers of proof were made. In turn,

those rulings and determinations would involve the application of different legal standards.

Although we prefer to decide cases on the merits, for us to "'determine and clarify the nature of

the contentions asserted'" puts us in "an advocacy role" that is "wholly improper for a reviewing

court to assume." Id. at 538 (citation omitted). We, therefore, dismiss Midwest Nephrology's

second point in its cross-appeal.

       Based on the foregoing, we affirm the circuit court's judgment



                                                     /s/ JAMES EDWARD WELSH
                                                     James Edward Welsh, Presiding Judge
All concur.




                                                10
