                                             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



                                                 5
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

                                                   7
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



                                                  8
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

                                                  9
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

                                                 10
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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