IN THE
APPELLATE COURT OF MISSOURI
WESTERN DISTRICT
ALAN ROETTGEN
Plaintiff/Appellant,
v.
TIMBERLINE DAIRY FARMS, INC.
Defendant/Respondent.
On Appeal from the Circuit Court of Cooper County, Missouri
The Honorable Robert L. Koffman
13CO-CC00008
APPELLANT’S OPENING BRIEF
Shaun Falvey #55294
Steven Duke #68034
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
Saint Louis, Missouri 63102
(314) 561-6317 direct line
(314) 222-2222 main line
(314) 421-0359 (Fax)
Counsel for Plaintiff/Appellant
ALAN ROETTGEN
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No: WD78675
Table of Authorities ............................................................................................................ iii
Jurisdictional Statement....................................................................................................... 1
Statement of Facts ............................................................................................................... 1
Standard of Review ............................................................................................................. 9
Point Relied On ................................................................................................................. 10
I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION
FOR A NEW TRIAL BECAUSE THE JURY WAS EXPOSED TO
IMPROPER INFORMATION NOT ADMITTED INTO EVIDENCE
WHICH INFLUENCED THE VERDICT TO THE PREJUDICE OF THE
PLAINTIFF.
Argument ........................................................................................................................... 11
Conclusion ......................................................................................................................... 17
Certificate of Compliance with Rule 84.06(b) .................................................................. 18
Certificate of Service ......................................................................................................... 19
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TABLE OF CONTENTS
Cases
Coyle v. City of St. Louis, 408 S.W.3d 281 (Mo. App. E.D. 2013) ................................... 15
Delisi v. St. Luke’s Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170 (Mo. App. E.D.
1985) .............................................................................................................................. 14
Dobbs v. Dobbs Tire and Auto Centers, 969 S.W.2d 894 (Mo. App. 1998) ...................... 9
Graves v. Atchison-Holt Elec. Co-op., 886 S.W.2d 1 (Mo. App. W.D. 1994) ................. 11
Helm v. Pepsi–Cola Bottling Co. of St. Louis, Inc., 723 S.W.2d 465 (Mo. App. E.D.1986)
........................................................................................................................................ 15
Hobbs v. Harken, 969 S.W.2d 318 (Mo. App. W.D. 1998) .............................................. 14
Liszewski v. Union Elec. Co., 941 S.W.2d 748 (Mo. App. E.D.1997).............................. 15
McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392 (Mo.App. W.D. 2005) ................... 11
McGuire v. Seltsam, 138 S.W.3d 718 (Mo. banc. 2004)................................................... 14
Ryan v. Campbell “66” Exp., Inc., 304 S.W.2d 825 (Mo. banc 1957) ............................. 15
State v. Sapien, 337 S.W.3d 72 (Mo.App. W.D. 2011)..................................................... 16
Woods v. Friendly Ford, Inc., 248 S.W.3d 699 (Mo.App. S.D. 2008) ............................... 9
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TABLE OF AUTHORITIES
This is an appeal from a final judgment entered in the Circuit Court of Pettis County
on May 24, 2015 (L.F. 197). Plaintiff/Appellant Alan Roettgen timely filed his notice of
appeal on June 2, 2015 (L.F. 199). This appeal does not involve any matter within the
exclusive jurisdiction of the Supreme Court. Accordingly, this Court has appellate
jurisdiction over this case pursuant to Article V, Section 3, Constitution of Missouri (1945),
as amended.
STATEMENT OF FACTS
The underlying action is a personal injury case arising out of a 2009 incident where
the Appellant, Alan Roettgen, (“Plaintiff”) alleges he slipped and fell suffering injury to
his neck while working for the Respondent, Timberline Dairy. (“Defendant”) (L.F. 12).
This matter was tried to a jury on January 29, 2015, and January 30, 2015. (L.F. 7).
Prior to trial Plaintiff filed several Motions in Limine with the Court. (L.F. 123).
Motions in Limine #4 & #5 asked that the Court exclude evidence of prior injuries to
unrelated body parts as well as to exclude evidence from prior chiropractic treatment
records. (L.F. 124). In ruling on both motions, the Court repeatedly held that the only
admissible evidence on prior injury would consist of the Plaintiff’s own personal prior
admissions against interest, if any, regarding the condition of his neck. The Court made
clear that medical opinions and doctors statements were not admissible because no expert
testimony established their relevance. For example, in ruling on the motions, the Court
stated that “nobody is giving a medical opinion” from prior treatment records. (Tr. 23:23). The Court stated that evidence that was “an admission of [Plaintiff] against interest”
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JURISDICTIONAL STATEMENT
admissible. (Tr. 27:25-28:4; Tr. 26:2-5). Thus, the Court confined Defendant’s ability to
discuss prior medical records “just as to the statements from [Plaintiff] about the neck –
nothing else from the records.” (Tr. 27:25-28:13)
As part of its case, Defendant introduced evidence that Plaintiff suffered from two
(2) herniated discs in his neck that ultimately required two (2) surgeries resulting in the
removal of four (4) discs from the Plaintiff’s neck. (Tr. 263-264; Supp.Rec. 15) Appellant
also introduced evidence that Plaintiff would require another surgery on his neck. (Tr.
267:11-14; Supp.Rec. 23:3-9). Dr. Gornet testified that he believed Plaintiff sustained an
injury to his neck at work as Plaintiff claimed, and that the injury produced the need for
surgery. (Supp.Rec. 20-21). Dr. Gornet testified that he did not recall any prior neck
problems of significance, and explained that in reviewing approximately 500 pages of
medical records he did not see evidence of any prior neck problems of significance.
(Supp.Rec. 16:12-19). In their brief cross-examination of Dr. Gornet, Defendant asked
nothing about any unrelated prior injuries or conditions in Plaintiff’s neck that might have
caused or contributed to the need for surgery. (Supp.Rec. 26-30). Defendant did not hire
or depose any medical expert witnesses.
During opening statements, counsel for the Defendant first made reference to an xray of the Plaintiff’s cervical spine, taken in 1997 – prior to the injury giving rise to the
case – that showed degenerative changes at the C5-6 level. (Tr. 172:24-173:6). Then,
during recross-examination of the Plaintiff’s first witness, the Defendant’s counsel once
again made reference to the aforementioned x-ray, referring to it as a “1997 x-ray of
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would be admissible but that “a medical opinion” or “an expert’s opinion” would not be
during cross-examination of Plaintiff, Defendant questioned in open court while in the
presence of the jury as follows:
“Q: (By Mr. Rackers) Okay. Well, I just want to ask you – I’m not trying to trick
you. I’ve got the advantage of – I’ve looked through all your medical records and
made notes, so I promise you, I’m not trying to trick you, but your attorney sent me
some records. One of them showed an x-ray in 1997 that showed degenerative
changes at C5 and C6.
Mr. Falvey: Your Honor, I’m going to object to that again, renew my
objection to this, if we can approach.
The Court: Come up.
(Counsel approach the bench and the following proceedings were had):
Mr. Falvey: For the record, I would renew my objection to this. It’s 12 years
before. There’s no doctor that has linked this up. My doc reviewed 500
pages of records and said it has nothing to do with this instance. I think to
proffer this to the Court – it’s clear that they require expert testimony that
they don’t have, otherwise, it’s just inviting the jury to speculate on things
that they’re not qualified to – to opine on without the assistance of expert
testimony. It’s 12 years before.”
(Tr. 271:10-272:8). The Court ultimately sustained the objection. (Tr. 273:14-15).
With the jury outside of the courtroom, Defendants made four (4) subsequent
attempts to introduce evidence of the 1997 x-ray and neck injury. First, Defendants argued
that a properly authenticated medical record allowed the contents of the record to be read
to the jury. (Tr. 321:9-322:10). The Court rejected this argument. The Court pointed out
that if Defendants’ argument were correct, “you would never have to disclose medical
experts. All you do is take the expert’s record, get a business records affidavit, and put it
into evidence. You’d never have to disclose an expert, they’d never be subject to cross
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[Plaintiff’s] cervical spine showing degenerative changes at C5-6”. (Tr. 228:6-9). Finally,
Defendants attempt to use the x-ray to suggest that Plaintiff suffered from prior neck
problems, the Court ruled, “I don’t think [the jury] can make that leap, and it’s a roving
commission to do so. My ruling stands.” (Tr. 337:20-22).
Next, Defendant attempted to offer the x-ray evidence “for the limited purpose” of
attempting to impeach Plaintiff’s treating physician. (Tr. 337:23-338:1). After a lengthy
debate, the Court ruled introducing the x-ray for this purpose would constitute an improper
impeachment. The Court again reminded Defendants, “you’re wanting the jury to be the
doctor and read the x-ray language to come up with a result on whether this man was
injured 12 years ago. You’re using the jury to be your expert.” (Tr. 348:8-12). This
exchange then followed:
“Mr. Rackers: If I understand the Court’s ruling, no reference in front of the
jury to the x-ray.
The Court: That’s correct.
Mr. Rackers: Okay.”
(Tr. 350:18-20).
Third, Defendants attempted to suggest Plaintiff opened the door to admission of
the x-ray because the word “cervical” was used by Plaintiff’s expert as well as in the
medical records documenting Plaintiff’s treatment following the alleged incident. (Tr.
367:4-8). The Court rejected this argument, again mentioning that merely reading the xray results “doesn’t tell us what that means.” (Tr. 379:15-18). Thus, the Court concluded,
“I will tell you, I think logic supports [Plaintiff’s] arguments. I’m going to sustain the
objection. (Tr. 380:1-3).
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examination, and the jury would speculate.” (Tr. 330:3-11). Thus, with respect to
jury. Defendants again argued the x-ray should be admitted because “the problem that
existed a month after the accident, is the exact same problem that existed in 1997.” (Tr.
389:6-9). The Court again rejected this argument, explaining, “You’re trying to say they
mean the same thing. I don’t know they mean the same thing.” (Tr. 389:10-13).
Accordingly, the Court ruled the evidence would not be admitted. (Tr. 389:16-21).
Just prior to the jury’s return, Defendants requested permission from the Court to
read admissions of the Plaintiff from a chiropractic record. The Court ruled the Defendants
would be permitted to read only the following experts from the record:
“Pain returned yest [sic], felt like neck was out, couldn’t flex or turn
right, riding on tractor, jarred,” and “pain between shoulders into NK,
SUN, period, woke up with that.”
(Tr. 412:11-15). The Court explained, “I made the ruling that [Defendants] would be
allowed to put in admissions. He could not put in medical opinions, but he could put in
admissions of [Plaintiff]. The statement by [Plaintiff] as to why he’s in pain on a given
day, whether he’s at the doctor or whether he’s at the grocery store, is relevant information
to defeat your argument. Objection overruled. I’m not letting [Defendants] get past
admissions.” (Tr. 412:19-413:2). The Court gave very specific instructions to Defendants
about how certain portions of the same chiropractic record were not to be displayed to the
jury. Specifically, the demonstrative aid of the x-ray was not to be shown to the jury. (Tr.
413:11).
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A final attempt to introduce the contents of the x-ray outside the presence of the
than instructed by the Court. Instead of reading the aforementioned chiropractic record,
the following exchange occurred in the presence of the jury:
Mr. Rackers: Exhibit A. September 3, 1998, Columbia Orthopedic
Group. Mr. Roettgen presents with neck pain that he indicates began
-The Court: Hang on a second. Hang on a second. You’re going
beyond what we talked about. Admissions.
Mr. Rackers: That’s his history to the doctor.
The Court: It’s not an admission. That’s the doctor’s statement.
Mr. Falvey: Right. I object.
The Court: Stick with the admissions.
Mr. Rackers: But that’s what –
(Counsel approach the bench…):
(Tr. 414:12-25). To summarize the sidebar conversation, the Court explained doctor’s
notes about a patient’s history of present illness did not equate to admissions made by the
Plaintiff himself. (Tr. 415-417). Defendants made an offer of proof at the sidebar
attempting to offer the following portion of Exhibit A, September 3, 1998 record: “Mr.
Roettgen presents with neck, mid-back and bilateral posterior shoulder pain which began,
he indicates, on September 26, 1997 after a fall on his shoulders and back.” (Tr. 415:23416:2). Defendants also attempted to offer physical examination findings from the same
record. (Tr. 416:14-19). The Court pointed out that Defendants “read out some things that
were admissions” and yet proceeded to begin reading from a different record. (Tr. 416:89). The Court rejected this offer of proof and prohibited Defendants from reading further
from the medical record, explaining that “what the Plaintiff told the doctor is fair game.
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After the jury reconvened, Defendants immediately read a different medical record
During its closing argument, Defendant acknowledged that an explanation was
needed as to what may have caused Plaintiff’s neck condition. Defendant proceeded to
make reference to the 1998 Columbia Orthopedic Group records as having not been
reviewed by Dr. Gornet. (Tr. 484:2-9). Plaintiff’s counsel objected to this inference, stating
that it misstated the evidence to inform the jury that Dr. Gornet did or did not have those
records. (Tr. 484:10-15). The Court sustained this objection. (Tr. 484:16-17). Immediately
following this, Defendant nonetheless referenced the 1998 medical records again
suggesting in their closing argument that Plaintiff’s testimony contained “discrepancies”
compared to these old medical records that were allegedly not considered by Plaintiff’s
expert treating physician. (Tr. 485:2-9).
During their deliberations that followed, the jury panel sent a written question to the
Court asking: “When was the lawsuit filed?” (Tr. 497:25-498:1). The Court’s reply was
to tell the jury “You’re bound by the facts and the evidence that has been presented to you
and your memory of what you heard in the courtroom.” (Tr. 498:2-5). Approximately one
minute later, the jury panel sent back a second question asking: “Was statement made about
back/neck issue in 1997 stated as degenerative?” (Tr. 498:11-16). The Court replied that
they jury was to be “bound by the evidence as you recall it.” (Tr. 498:11-16). The jury
then returned a verdict assessing zero percent fault to any of the parties in the case. (Tr.
499:6-12; L.F. 162). Judgment was subsequently entered on February 3, 2015. (L.F. 162).
Plaintiff filed a Motion for New Trial on February 24, 2015. (L.F. 163). The Motion
for New Trial pertained to the jury’s written question about a “statement made about
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The rest of it is not coming in.” (Tr. 417:9-11).
Plaintiff highlighted that the Court repeatedly prohibited Defendants from attempting to
introduce evidence of the 1997 x-ray report, which discussed findings of degenerative disc
disease in Plaintiff’s neck. (L.F. 163-4).
Importantly, in Defendants’ response to Plaintiff’s Motion for a New Trial,
Defendants acknowledged that the Court ruled this 1997 x-ray evidence inadmissible.
Defendant explicitly admitted it was aware of “the Court’s ruling that this evidence was
inadmissible.” (L.F. 174). Defendants denied presenting the inadmissible evidence to the
jury, stating, “Defendant did not enter into the record evidence of Plaintiff’s degenerative
disc disease due to the Court’s ruling that this evidence was inadmissible.” (L.F. 174).
At oral argument on the Motion for New Trial, this Court questioned how the jury
would be able to ask such a specific question about evidence that was ruled inadmissible.
After discussing the issue with counsel, this Court requested transcripts of all sidebars in
the case, and ordered the parties to submit supplemental briefs following their review of
the same. Both parties submitted supplemental briefs in accordance with this Order. The
Court ultimately denied the Plaintiff’s Motion on the purported basis that the jury did not
hear the inadmissible evidence. The Court held that “[f]or the Court to assume that the
reason for the question of the jury was because of something said or shown in the trial
would be rank speculation.” (L.F. 198). This appeal followed.
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back/neck issue in 1997 stated as degenerative.” (L.F. 163). In his Motion for New Trial,
The standard of review for denial of a Motion for New Trial is that this Court of
Appeals reviews the trial court’s ruling for an abuse of discretion. Dobbs v. Dobbs Tire
and Auto Centers, 969 S.W.2d 894, 899 (Mo. App. 1998); Woods v. Friendly Ford, Inc.,
248 S.W.3d 699, 705 (Mo.App. S.D. 2008).
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STANDARD OF REVIEW
I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION FOR A
NEW TRIAL BECAUSE THE JURY WAS EXPOSED TO IMPROPER
INFORMATION NOT ADMITTED INTO EVIDENCE WHICH INFLUENCED
THE VERDICT TO THE PREJUDICE OF THE PLAINTIFF.
Graves v. Atchison-Holt Elec. Co-op., 886 S.W.2d 1, 3 (Mo.App. W.D. 1994)
McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 402 (Mo.App. W.D. 2005)
Liszewski v. Union Elec. Co., 941 S.W.2d 748, 753 (Mo. App. E.D.1997)
State v. Sapien, 337 S.W.3d 72, 76 (Mo.App. W.D. 2011)
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POINT RELIED ON
I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION FOR A
NEW TRIAL BECAUSE THE JURY WAS EXPOSED TO IMPROPER
INFORMATION NOT ADMITTED INTO EVIDENCE WHICH INFLUENCED
THE VERDICT TO THE PREJUDICE OF THE PLAINTIFF.
The trial court abused its discretion in denying Plaintiff’s Motion for New Trial
because the jury verdict was prejudicially tainted by Defendant’s references to the
existence of inadmissible evidence. It is reversible error if the complaining party can
demonstrate prejudice due to a jury’s exposure to improper or inadmissible evidence.
Graves v. Atchison-Holt Elec. Co-op., 886 S.W.2d 1, 3 (Mo.App. W.D. 1994), opinion
adopted and reinstated after retransfer (Nov. 28, 1994). “An abuse of discretion occurs
when a trial court's 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.” McElroy v. Eagle Star Group, Inc., 156 S.W.3d
392, 402 (Mo.App. W.D. 2005). Here, the trial court was simply incorrect when it denied
Plaintiff’s new trial motion based on the logic that “[f]or the Court to assume that the reason
for the question of the jury was because of something said or shown in the trial would be
rank speculation.”
A. Members of the Jury were Unquestionably Exposed to Improper Information
About a 1997 X-ray Showing a Purported Prior Injury
Defendant’s interjections about a 1997 x-ray showing a degenerative condition in
Plaintiff’s spine were improper and in violation of the trial court’s ruling on the Plaintiff’s
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ARGUMENT
Plaintiff were admissible from prior medical records, but the substance of any medical
information from those records would not be admissible because the Defendant had not
established the relevance of same through medical testimony. (Tr. 20:7-9). Despite this
clear ruling, Defendant immediately made reference to a 1997 x-ray in their opening
statement. (Tr. 172:24-173:6). Plaintiff’s injury which gave rise to the underlying action
took place in 2009. (L.F. 12). Defendant was in violation of the trial court’s ruling from
the inception of the trial. Their mention of the x-ray was not just a mention in passing, nor
simply that such a medical record existed. Rather, they made the statement that the x-ray,
taken 12 years prior to Plaintiff’s injury, showed degenerative changes to his C5-6 cervical
spine. (Tr. 172:24-173:6). The results of this x-ray were no “admissions” of Plaintiff and
thus were not admissible per the Court’s ruling.
Defendant made a second conclusory statement about the 1997 x-ray that further
improperly invited the jury to consider inadmissible evidence.
During the recross-
examination of Plaintiff’s first witness, Defendant asked a Kevin Lenz, a lay witness who
owns the Defendant’s company, about a “1997 x-ray of his cervical spine showing
degenerative changes at C5-6”. (Tr. 228:6-9). A lay witness who owns the Defendant’s
company could not possibly offer relevant testimony in this regard. Essentially, counsel
for Defendant was stating this as “fact” for the jury’s consideration. At this point in the
trial, the members of the jury had now heard twice about a 1997 x-ray showing
degenerative changes in the cervical spine without any medical expert testimony to explain
the meaning and relevance of the x-ray.
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Motions in Limine. At the outset of the trial, the trial court ruled that only admission of the
Defendant’s cross-examination of Plaintiff. (Tr. 271:10-16). Plaintiff objected to the x-ray.
(Tr. 271:17-22). The trial court sustained Plaintiff’s objection and was in agreement that
use of the x-ray as substantive evidence was impermissible without the proper foundation.
(Tr. 273:8-10). Despite the trial court’s ruling, this was now the third time the jury had
heard reference to an x-ray taken prior to the injury at issue in the case used to directly
insinuate Plaintiff suffered from some sort of preexisting condition. These references were
all made with no evidentiary showing or expert testimony to support such a conclusion.
In light of the above, the trial court incorrectly concluded that it would amount to
“rank speculation” to presume that the jury heard evidence about the inadmissible 1997 xray. To the contrary, the above-referenced examples demonstrate that on three (3) separate
occasions the x-ray was mentioned in the presence of the jury. The trial court’s ruling was
simply contrary to this evidence and thus constituted an abuse of discretion.
Importantly, Defendant conceded in its Suggestions in Opposition to Plaintiff’s
Motion for New Trial that they were aware of the fact that the x-ray was inadmissible.
Defendant’s response states, “Defendant did not enter into the record evidence of Plaintiff’s
degenerative disc disease due to the Court’s ruling that this evidence was inadmissible.”
(L.F. 174). Defendant still willingly discussed what they knew to be inadmissible evidence
in open court in the presence of the jury. Instead of offering medical expert testimony to
assist the jury in understanding the information presented to them, the jury was invited to
become a roving commission and speculate about a possible relationship between a 12year old x-ray with inconsequential findings and the Plaintiff’s current condition with
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There was a third attempt to introduce the 1997 x-ray as evidence during
B. The Plaintiff was Prejudiced by the Jury’s Exposure to Inadmissible Evidence
The references to the 1997 x-ray were problematic, and ultimately prejudicial,
because they exposed the jury to unsubstantiated medical testimony. It is well-established
that expert testimony regarding medical causation is required to prevent jurors from ruling
on conjecture or surmise, and that medical opinions based on assumptions not supported
in the evidence should not be admitted into evidence. McGuire v. Seltsam, 138 S.W.3d
718, 722 (Mo. banc. 2004); Hobbs v. Harken, 969 S.W.2d 318, 322 (Mo. App. W.D. 1998);
Delisi v. St. Luke’s Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 177 (Mo. App.
E.D. 1985). Any finding by the jury in this case that Plaintiff’s 1997 degenerative disc
disease played a role in his current condition would amount to pure conjecture, surmise
and assumption.
In this case, prejudice need not be inferred; a question asked by the jury during
deliberations illustrates with absolute clarity what considerations were before them when
reaching their verdict. The jury asked the question, “Was statement made about back/neck
issue in 1997 stated as degenerative?” (Tr. 498:11-16). Two things are clear from this
question: (1) members of the jury speculated about conditions that may or may not have
been present in Plaintiff’s neck prior to his 2009 injury, and (2) based this speculation upon
information gathered from an x-ray that was undisputedly inadmissible. Neither of these
propositions were supported by admissible evidence or medical testimony. The fact that
the jury returned its verdict almost immediately after receiving no direct answer to the
question about a 1997 x-ray demonstrates the undeniable prejudice associated with this
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respect to which they presented no expert testimony.
In fact, the only admissible expert testimony heard by members of the jury during
the trial ran counter to the notion that Plaintiff had any sort of preexisting neck issues.
Plaintiff played the videotaped deposition of Dr. Matthew Gornet, M.D. for the jury. (Tr.
354:1-3). Dr. Gornet testified he found nothing of significance in terms of prior neck
injuries or problems as part of his treatment and review of medical records. (L.F. 171). This
underscores the inevitable conclusion that the jury improperly relied on statements by
Defense counsel about the meaning and content of the inadmissible x-ray in their
deliberations.
The only reasonable remedy for a jury exposed to improper evidence is the granting
of a new trial. The “persistent asking of improper questions, offering improper evidence,
or displaying material not in evidence” may “constitute misconduct sufficient for the
granting of a new trial.” Ryan v. Campbell “66” Exp., Inc., 304 S.W.2d 825, 828 (Mo.
banc 1957). Such acts by counsel “may require a new trial where [they] constitute a willful
attempt to present improper matters to the jury, or to create significant and improper
inferences, or to force one's opponent to be placed in the light of suppressing facts by his
objections.” Liszewski v. Union Elec. Co., 941 S.W.2d 748, 753 (Mo. App. E.D.1997)
(quoting Ryan, 304 S.W.2d at 829). “In each such case the final question is whether the
conduct substantially influenced the verdict, despite the action taken at the time by the
court, in sustaining objections or otherwise.” Id. at 753–54 (quoting Ryan, 304 S.W.2d at
828–29); see also Helm v. Pepsi–Cola Bottling Co. of St. Louis, Inc., 723 S.W.2d 465, 470
(Mo. App. E.D.1986) and Coyle v. City of St. Louis, 408 S.W.3d 281, 287 (Mo. App. E.D.
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evidence.
whether this substantially influenced the verdict.
“In determining prejudice, this court considers the amount of the erroneously
admitted evidence and the extent to which the evidence was referenced during the trial.
When the inadmissible evidence is substantial and there are several references to the
inadmissible evidence, prejudice is found.” State v. Sapien, 337 S.W.3d 72, 76 (Mo.App.
W.D. 2011). The inadmissible evidence in question meets all the requisite criteria to be
considered prejudicial; it is substantial in that it was used to directly undermine the
Plaintiff’s causation and damages arguments, and as previously noted, was referred to
several times within the presence of the jury. Further, the jury’s question during
deliberation underscores the corresponding impact. Consequently, it was absolutely
prejudicial and not harmless and granting the Plaintiff’s Motion for a New Trial was the
only appropriate remedy.
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2013). The jury’s written question during deliberations eliminates any question about
WHEREFORE, because the jury was exposed to improper and unsubstantiated
medical testimony by Timberline’s counsel, Appellant Alan Roettgen, requests this Court
reverse the order of the circuit court denying a new trial and to remand this case to the trial
court for further proceedings.
BROWN & CROUPPEN, P.C.
BY:
/s/ Shaun Falvey
Shaun Falvey #55294
Steven Duke #68034
Brown & Crouppen, P.C.
211 N. Broadway, Suite 1600
St. Louis, Missouri 63102
Phone: 314-561-6317
Fax: 314-667-3772
ShaunF@getbc.com
SteveD@getbc.com
pipleadings@getbc.com
ATTORNEYS FOR APPELLANT
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CONCLUSION
Comes now Appellant and certifies that this brief complies with both Rule 84.06(b)
and Local Rule XLI with respect to word limitations in that it contains 3951 words (less
than 15,500 per Rule XLI), said number of words obtained by using Microsoft Word Count
feature.
The brief was prepared in Microsoft Word and filed electronically with the Court of
Appeals.
BROWN & CROUPPEN, P.C.
BY:
/s/ Shaun Falvey
Shaun Falvey #55294
Steven Duke #68034
Brown & Crouppen, P.C.
211 N. Broadway, Suite 1600
St. Louis, Missouri 63102
Phone: 314-561-6317
Fax: 314-667-3772
ShaunF@getbc.com
SteveD@getbc.com
pipleadings@getbc.com
ATTORNEYS FOR APPELLANT
18
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
RULE 84.06(b) CERTIFICATION
The undersigned certifies that on the 19th day of November, 2015, a complete copy
of this instrument was served upon the attorneys of record for respondents via the Court’s
electronic notice system and via U.S. Mail, addressed to the following attorney(s):
Mr. Christopher P. Rackers
Schreimann, Rackers, Francka & Blunt
931 Wildwood Drive, Suite 201
Jefferson City, MO 65109
Attorney for Respondent
/s/ Shaun Falvey
ATTORNEY FOR APPELLANT
19
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
CERTIFICATE OF SERVICE
IN THE
APPELLATE COURT OF MISSOURI
WESTERN DISTRICT
ALAN ROETTGEN
Plaintiff/Appellant,
v.
TIMBERLINE DAIRY FARMS, INC.
Defendant/Respondent.
On Appeal from the Circuit Court of Cooper County, Missouri
The Honorable Robert L. Koffman
13CO-CC00008
APPELLANT’S APPENDIX
Shaun Falvey #55294
Steven Duke #68034
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
Saint Louis, Missouri 63102
(314) 561-6317 direct line
(314) 222-2222 main line
(314) 421-0359 (Fax)
Counsel for Plaintiff/Appellant
ALAN ROETTGEN
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
No: WD78675
Jury’s Verdict Form………………………………………………………...……...A1
Order Denying Plaintiff’s Motion for New Trial…………………………………...A3
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
TABLE OF CONTENTS
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
A1
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
A2
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
A3
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
A4
The undersigned certifies that on the 19th day of November, 2015, a complete copy
of this instrument was served upon the attorneys of record for respondents via the Court’s
electronic notice system and via U.S. Mail, addressed to the following attorney(s):
Mr. Christopher P. Rackers
Schreimann, Rackers, Francka & Blunt
931 Wildwood Drive, Suite 201
Jefferson City, MO 65109
Attorney for Respondent
/s/ Shaun Falvey
ATTORNEY FOR APPELLANT
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 19, 2015 - 01:09 PM
CERTIFICATE OF SERVICE