text:
    Sammy Kay PORTER, Respondent, v. TOYS ‘R’ US-DELAWARE, INC., Appellant.
    No. WD 61645.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2004.
    As Modified Nov. 23, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      John F. Murphy and Bryan T. Pratt, Kansas City, MO, for Appellant.
    Jack T. Bangert, Mark D. Katz, and Lloyd L. Messick, Kansas City, MO, for Respondent.
    Jason P. Osteen, Kansas City, MO, for Amicus Curiae.
    Before ULRICH, P.J., and HOWARD and NEWTON, JJ.
   PER CURIAM.

Toys “R” Us (TRU) appeals the judgment of the trial court following a jury trial in favor of Sammy Porter awarding her $300,000 in damages on her premises liability action. TRU raises six points on appeal. It claims that the trial court erred in: (1) fading to grant its motions for directed verdict and judgment notwithstanding the verdict (JNOV); (2) admitting into evidence TRU’s interrogatory answer identifying an expert witness; (3) excluding evidence that Ms. Porter’s medical bills were satisfied by less than the amount charged; (4) admitting into evidence all charged medical expenses; (5) denying TRU’s motion for remittitur; and (6) allowing certain comments by Ms. Porter during closing argument.

For the reasons set forth below, we affirm the trial court’s judgment.

Facts

Sammy Porter was a customer in the Toys “R” Us store in Columbia, Missouri, on August 2,1997. As she walked through the stroller aisle, a stroller fell off the display shelf on top of her striking her in the head, shoulder, arm, and thumb. The stroller fell off the shelf when it was dislodged as an employee adjusted a baby car seat on the shelf behind the stroller. Ms. Porter did not seek medical attention at the time although she felt light-headed, experienced pressure on her shoulder, and had bruises on her arm and thumb. As the day progressed, Ms. Porter’s head and shoulder became more tender and bruised, and her neck became stiffer. She had trouble sleeping that night, and her arm ached.

Ms. Porter continued to experience pain in her neck and shoulder and weakness in her arm over the next two weeks. On August 17, as she was shaking a can of paint, she felt a pop, and excruciating pain radiated from her neck down into her shoulders and arms. The next day, Ms. Porter saw a chiropractor for her pain. The chiropractor treated Ms. Porter for the next two months with manipulation, massage, and exercise.

Ms. Porter’s pain, stiffness, and soreness waxed and waned for the next several months until August 1998, when she entered the emergency room with severe, debilitating pain in her neck. She then saw an orthopedic surgeon specializing in the maladies of the spine and neck and was diagnosed with an extruded disk. After an unsuccessful attempt at conservative treatment including exercise and steroid injections, Ms. Porter underwent surgery on November 17, 1998.

Ms. Porter filed her petition for damages against TRU on May 25, 2000. In her petition, Ms. Porter alleged negligence of the TRU employee who dislodged the stroller and improper stacking of merchandise. The jury returned a verdict in Ms. Porter’s favor on the stacking count and awarded her $300,000 in damages. The trial court entered judgment accordingly. TRU filed post trial motions, which were denied. This appeal follows.

Point I

In its first point on appeal, TRU claims that the trial court erred in not granting its motion for directed verdict and motion for JNOV. It argues that Ms. Porter failed to make a submissible case. Specifically, TRU claims that Ms. Porter failed to present substantial evidence that it knew or by using ordinary care could have known that the stroller aisle was not reasonably safe. A defendant is entitled to a judgment notwithstanding the verdict only when the plaintiff fails to make a submissible case. Altenhofen v. Fabricor, Inc., 81 S.W.3d 578, 584 (Mo.App. W.D. 2002); Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445, 448 (Mo.App. W.D.2001). To make a submissible case, a plaintiff must present substantial evidence for every fact essential to liability. Id.‘Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case.’ ” Id. (quoting Love v. Hardee’s Food Sys., Inc., 16 S.W.3d 739, 742 (Mo.App. E.D.2000)).

In reviewing for a submissible case, the evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to the plaintiff. Id.; Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 286 (Mo.App. E.D. 2002). The plaintiffs evidence is presumed to be true. Id. Any of the defendant’s evidence that does not support the plaintiffs case is disregarded. Id.; Poloski, 68 S.W.3d at 448. An appellate court will not, however, supply missing evidence or give the plaintiff the benefit of unreasonable, speculative or forced inferences. Id,.; Moore, 87 S.W.3d at 286. Whether the evidence in a case is substantial and whether the inferences drawn therefrom are reasonable are questions of law. Polo-ski, 68 S.W.3d at 448. Granting a JNOY is a drastic action that should be done only when reasonable persons could not differ on a correct disposition of the case. Moore, 87 S.W.3d at 286. An appellate court will not overturn a jury’s verdict unless there is a complete absence of probative facts to support it. Id.; Poloski, 68 S.W.3d at 449.

“The general duty owed to an invitee by the owner of the premises is the exercise of reasonable and ordinary care in making the premises safe.” Morrison v. St. Luke’s Health Corp., 929 S.W.2d 898, 903 (Mo.App. E.D.1996); Luthy v. Denny’s, Inc., 782 S.W.2d 661, 662 (Mo.App. W.D.1989). To make a submissible case as an injured invitee, a plaintiff must show that the defendant knew or, by using ordinary care, should have reasonably known of the dangerous condition and failed to use ordinary care to remove it, barricade it, or warn of it, and that plaintiff sustained damage as a direct result of such failure. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 443-44 (Mo. banc 1998); MAI 22.03 [1995 Revision], In this point, TRU contends only that Ms. Porter failed to present substantial evidence that TRU knew or by using ordinary care should have reasonably known that the stroller aisle was not reasonably safe. The other elements required for submissibility are, therefore, not addressed on this appeal. Luthy, 782 S.W.2d at 663.

A storeowner is not liable to a business invitee for injury resulting from a dangerous or unsafe condition on the premises unless the storeowner had actual or constructive knowledge of the condition in time to have remedied the condition prior to the injury. Elmore v. Wal-Mart Stores, Inc., 812 S.W.2d 178, 179-80 (Mo.App. E.D.1991). A store owner’s actual knowledge of a dangerous condition is shown if an agent or employee of the owner knew of the dangerous condition. Bynote v. Nat’l Super Mkts., Inc., 891 S.W.2d 117, 120 (Mo. banc 1995). To establish constructive knowledge or notice, the condition must have existed for a sufficient length of time or the facts must be such that the defendant should have reasonably known- of its presence. Love, 16 S.W.3d at 742. ‘[T]he method of merchandising and the nature of the article causing injury’ ” are important factors to be considered in determining whether a defendant had constructive notice of a dangerous condition. Emery, 976 S.W.2d at 444 (quoting Sheil v. T.G. & Y Stores Co., 781 S.W.2d 778, 780 (Mo. banc 1989)).

TRU contends that Ms. Porter failed to present substantial evidence that it knew or by using ordinary care should have reasonably, known that the stroller aisle was a dangerous or unsafe condition. Instead, it argues, the record demonstrates the opposite — that its stroller aisle was reasonably safe. In making this argument, TRU relies on the testimony of several TRU employees. These employees testified that they were not aware of any other incidents where a stroller fell or became dislodged. They also testified that the Columbia TRU store was safety conscious, that the strollers were stored on a flat surface with metal fencing across the front of the shelf, and that the stroller brakes were usually applied. This evidence, however, does- not support TRU’s argument that Ms. Porter failed to make a submissible case. Under the appropriate standard of review, even if this evidence favors TRU’s position, it must be disregarded. Moore, 87 S.W.3d at 286; Poloski, 68 S.W.3d at 448. Instead, the evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to Ms. Porter. Id.

The evidence in this case showed that a heavy stroller fell off a shelf and struck Ms. Porter. The evidence further showed that TRU uses a self-service form of merchandising, and merchandise sometimes falls off the shelves at the store. The strollers are displayed side-by-side on a shelf that is four and a half feet above the ground. The tops of the strollers reach higher than six feet above the ground. The strollers sit on wheels. To make the strollers easily accessible to customers, they are not secured to the shelf. Recognizing the danger in displaying heavy strollers on a high shelf, a manager at the Columbia TRU store testified that certain precautions are made on the stroller aisle to prevent the strollers from falling off the shelf. For example, a metal fencing runs across the front of the stroller shelf; the tops of the stroller wheels are, however, higher than the fencing. Also, the strollers’ brakes are sometimes applied. Based on this self-service method of merchandising and the nature of the article causing injury — a heavy stroller displayed four and a half feet above the floor falling from the display shelf — plaintiff has shown that TRU had constructive notice that the stroller aisle was a dangerous or unsafe condition. See e.g. Emery, 976 S.W.2d at 444; Shell, 781 S.W.2d at 781-82 (finding that in a self-service store, it is likely that items for sale will fall to the floor, and an owner of a self-service store will be deemed to have knowledge of this problem). Ms. Porter, therefore, made a sub-missible case. The trial court did not err in denying TRU’s motion for directed verdict and motion for JNOV.

Point I is denied.

Point II

In point two, TRU claims that the trial court erred in admitting into evidence TRU’s interrogatory answer identifying Dr. Lowry Jones as an expert witness. At trial, the following interrogatory and answer were read into evidence:

Interrogatory No. 17: State the name and address of each and every person who you expect to call as an expert witness at the trial of this case, and for each such expert state the general nature of the subject matter to which they are expected to testify.
Answer: TRU states Lowry Jones, Jr., M.D., Diekson-Diveley Midwest Orthopedic Clinic, Inc., 4320 Wornall Road, Suite 160, Kansas City, Missouri, will generally testify regarding plaintiffs medical condition and causation.

TRU contends that the answer was not relevant or probative to any issue at trial and that its introduction into evidence created a negative inference with the jury that Dr. Jones’ medical opinions must have favored Ms. Porter when he did not testify for TRU.

The admission or exclusion of evidence lies within the sound discretion of the trial court and will not be disturbed absent abuse of discretion. Nelson v. Waxman, 9 S.W.3d 601, 603 (Mo. banc 2000). “ ‘The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.’ ” Id. at 604 (quoting Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991)).

The principal criterion for the admission of evidence is relevancy. Guess v. Escobar, 26 S.W.3d 235, 242 (Mo.App. W.D.2000). Evidence is logically relevant if it tends to prove or disprove a fact in issue or corroborate other evidence. Id. Logically relevant evidence is not necessarily admissible; the evidence must also be legally relevant. Id.‘Legal relevance involves a process through which the probative value of the evidence (its usefulness) is weighed against the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence (the cost of evidence).’ ” Id. (quoting Olinger v. Gen. Heating & Cooling Co., 896 S.W.2d 43, 48 (Mo.App. W.D.1994)).

The failure of a party to call a witness who has knowledge of facts and circumstances vital to the case generally raises a presumption or inference that the testimony would be unfavorable to the party failing to offer it. Leehy v. Supreme Express & Transfer Co., 646 S.W.2d 786, 790 (Mo. banc 1983); Williams v. Cas. Reciprocal Exch, 929 S.W.2d 802, 805 (Mo.App. W.D.1996). If the witness is equally available to both parties, it is improper for a party to argue such an adverse inference. Leehy, 646 S.W.2d at 790; Williams, 929 S.W.2d at 806.

TRU relies on Hulsey v. Schulze, 713 S.W.2d 873 (Mo.App. E.D.1986), in arguing that the naming of an expert witness in an interrogatory answer is irrelevant and inadmissible at trial. In Hulsey, the plaintiff appealed the trial court’s ruling prohibiting her from reading the defendants’ answer to an interrogatory identifying an expert witness on the ground that the answer was irrelevant. Id. at 876. In finding that the trial court did not abuse its discretion in excluding the evidence, the Eastern District explained that the defendants were not required by law to produce at trial a witness named in their answer. Id. Furthermore, the record reflected no evidence that the person named was qualified to testify as an expert. Id.

Hulsey is distinguishable from the instant case. In this case, the interrogatory answer identifying the expert witness was relevant. Dr. Jones was not withdrawn as a witness by TRU prior to trial. Counsel for TRU indicated prior to trial that he had not decided whether he would call Dr. Jones to testify. Relying on this representation, Ms. Porter’s attorney asked about Dr. Jones during voir dire. Specifically, he asked potential jury members if Dr. Jones or his partners had ever treated them or their immediate family. Two ven-irepersons indicated that they had been treated by Dr. Jones or a member of his practice group, and Ms. Porter’s attorney further inquired about the nature of the treatment. TRU did not object to any of this questioning.

Ms. Porter’s attorney, again relying on TRU’s implied representation that it might call Dr. Jones as an expert witness in its behalf, referred to Dr. Jones during his opening statement. He explained to the jury that TRU had Dr. Jones examine Ms. Porter’s medical records and that he assumed TRU would call Dr. Jones to testify. TRU did not object to these statements. Only when Ms. Porter’s attorney sought to read TRU’s interrogatory answer into evidence during trial did TRU object and withdraw Dr. Jones as an expert.

TRU’s identification of Dr. Jones in its interrogatory and its attorney’s representation prior to trial that he had not yet decided whether to call Dr. Jones to testify were valid reasons for Ms. Porter’s attorney’s inquiry about Dr. Jones during voir dire and reference to him in his opening statement. Believing Dr. Jones would be testifying for TRU at trial, Ms. Porter’s attorney was compelled to ask potential jurors about him or face waiving any right to challenge a juror who knew the doctor. See Wingate by Carlisle v. Lester E. Cox Med. Ctr., 853 S.W.2d 912, 914 (Mo. banc 1993) (holding that failure to ask a question on voir dire waives the right to challenge the juror on any grounds not asked). Unlike in Hulsey, the interrogatory answer identifying Dr. Jones as an expert witness in this case was relevant to explain to the jury Ms. Porter’s attorney’s references to Dr. Jones during voir dire and his opening statement. Nothing in the Hul-sey case indicated that the witness was mentioned during trial.

Furthermore, Ms. Porter’s attorney did not argue to the jury an adverse inference from TRU’s failure to call Dr. Jones to testify. When Ms. Porter sought to introduce the interrogatory answer into evidence, her attorney specifically told the trial court that he would not comment on TRU’s failure to call Dr. Jones. Ms. Porter’s attorney did not introduce the interrogatory answer to argue an adverse inference from TRU’s failure to call the doctor to testify. Instead, relying on the implied representation of TRU that it might call Dr. Jones as an expert witness, Ms. Porter’s attorney presented the evidence to clarify the doctor’s role at trial. This evidence became relevant after Ms. Porter’s attorney referred to him during voir dire and in his opening statement without objection. The trial court, therefore, did not abuse its discretion in admitting the interrogatory answer.

Point II is denied.

Points III and IV

In its third point on appeal, TRU claims that the trial court erred in excluding evidence that Ms. Porter’s medical bills were satisfied by less than the amount charged. Specifically, it contends that the trial court abused its discretion by prohibiting it from asking Mrs. Porter two questions:

(1) “Isn’t it true that it took much less than $33,000 to pay and satisfy all of your medical bills?” and,
(2) “Isn’t it true that a separate entity not involved in this lawsuit has determined that the reasonable value of [your] medical bills was much less than $33,000?”

TRU argues it should have been able to ask these questions to show that Ms. Porter’s medical expenses were satisfied by substantially less than the $33,000 bill submitted by her, which was directly probative to the reasonableness of her medical bills.

In a related issue raised in point four, TRU argues that the trial court erred in admitting into evidence the full amount Mrs. Porter was charged for medical care. It contends that the trial court allowed Ms. Porter to improperly submit medical expenses that were billed but were satisfied for much less than the billed amount.

Mrs. Porter objected at trial to TRU’s two questions set forth above because she believed they implicated the collateral source rule. Additionally, she points out on appeal that TRU could have, and was not prevented from, challenging the reasonableness of her medical expenses through other means.

“ ‘The collateral source rule is an exception to the general rule that damages in tort should be compensatory only.’” Washington v. Barnes Hosp., 897 S.W.2d 611, 619 (Mo. banc 1995) (quoting Overton v. United States, 619 F.2d 1299, 1306 (8th Cir.1980)). It prevents a tortfea-sor from reducing its liability to an injured person by proving that payments were made to the person from a collateral source. Duckett v. Troester, 996 S.W.2d 641, 648 (Mo.App. W.D.1999). The Missouri Supreme Court has defined the collateral source rule as providing that

“a wrongdoer is not entitled to have the damages to which he is liable reduced by proving that plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him, or, stated more succinctly, the wrongdoer may not be benefited by collateral payments made to the person he has wronged.”

Washington, 897 S.W.2d at 619 (quoting Collier v. Roth, 484 S.W.2d 502, 506-07 (Mo.1968)).

Medical insurance purchased by a plaintiff and governmental benefits contingent upon a plaintiffs financial need or special status, such a Medicare and Medicaid, are independent sources that are subject to the collateral source rule, and, thus, a defendant may not inform the jury of such sources. Id. at 619-20. The rationale for such application of the collateral source rule is that “plaintiffs who contract for insurance or other benefits with funds they could have used for other purposes are entitled to the benefit of their bargain.” Id. at 619 (citing Kickham v. Carter, 335 S.W.2d 83, 90 (Mo.1960), and Over-ton, 619 F.2d at 1306). Also, we have previously held that medical charges reduced, discounted, or “written-off” as full payment for services pursuant to a contract or agreement between the medical provider and the insurance company or as part of Medicare coverage may be subject to the collateral source rule in Missouri. Brown v. Van Noy, 879 S.W.2d 667, 676 (Mo.App. W.D.1994). We reasoned that discounted medical expenses are not materially different than expenses paid by insurance or another source. Id.

But, application of the collateral source rule is not simple; the rule constitutes a combination of rationales applied in a number of different circumstances to determine whether evidence of mitigation of damages should be precluded from admission as evidence. Washington, 897 S.W.2d at 619. For example, Missouri’s courts are not uniform on whether the rule applies where gratuitous services were rendered to a plaintiff as a result of that person’s special status. Id. at 620.

While the present case was pending on appeal, our supreme court handed down Farmer-Cummings v. Personnel Pool of Platte County, 110 S.W.3d 818 (Mo. banc 2003). In that case, the Labor and Industrial Relations Commission awarded Ms. Farmer-Cummings medical expenses incurred because of her asthmatic condition, which resulted from her work environment. Id. at 820. The Commission did not allow Ms. Farmer-Cummings to recover fees healthcare providers adjusted or “wrote-off ’ from the original bills. Id.

On appeal, Ms. Farmer-Cummings contested the Commission’s disallowance of the amounts adjusted or written-off by her medical providers. She claimed that section 287.270, RSMo 2000, which provides that in workers’ compensation cases an employer’s liability is not reduced by the amount of contributions to the employee from another source, mandates that such reductions of her medical expenses should not be considered. Id. at 822.

In addressing Ms. Farmer-Cummings’ claim on appeal, the Missouri Supreme Court observed that “there [was] no real issue as to whether the initial fees were ‘fair and reasonable’ as those terms are commonly understood.” Id. at 821. Rather, “the real issue [was] whether the original medical bills remain ‘fees and charges’ ■ collectable by the employee [under section 287.140, which governs the employer’s duty to provide medical and other services to an injured employee,] if [the bills] are subsequently reduced or written-off by the provider in the collection process.” Id. In deciding the issue, the Court noted that section 287.270 “clearly was intended to allow the employee to benefit from any collateral source the employee might have available to him or her, independent of the employer, whether purchased or not.” Id. at 822. But, the Court found that “[a]l-though the write-offs and fee adjustments constitute a ‘reduction in cost,’ this reduction was not effected by any act of Ms. Farmer-Cummings. [She] incurred no expense or effort, nor did she ‘economize’ by foregoing any privilege.” Id. Furthermore, the Court remarked that write-offs and fee adjustments “are often the product of a healthcare provider’s decision to balance the provider’s books in accordance with actual amounts received or a decision that the outstanding amount is not worth pursuing.” Id. Therefore, the Court concluded that “[s]uch write-offs and fee adjustments are neither ‘savings ... of the injured employee’ nor ‘benefits derived from any other source than the employer or the employer’s insurer for liability" ” under section 287.270. Id. The Court held that “if [the employer] establishes by a preponderance of the evidence that the healthcare providers allowed write-offs and reductions for their own purposes and [the employee] is not legally subject to further liability, [the employee] is not entitled to any windfall recovery.” Id. at 823. The Court also explained, “[i]t is a defense [of the employer] to establish that [the employee] was not required to pay the billed amounts, that her liability for the disputed amounts was extinguished, and that the reason that her liability was extinguished does not otherwise fall within the provisions of section 287.270.” Id.

In arriving at this conclusion, the Court cited two workers’ compensation cases in which the reviewing court determined that an employee was not entitled to compensation for healthcare provider write-offs: (1) Mann v. Varney Construction, 23 S.W.3d 231, 233 (Mo.App. E.D.2000), wherein “[t]he court ruled that an employee is not entitled to compensation for Medicaid write-off amounts when the total amount submitted to Medicaid will never be sought from claimant”; and, (2) Lenzini v. Columbia Foods, 829 S.W.2d 482, 487 (Mo.App. W.D.1992), wherein the court reduced a workers’ compensation award by amount already written-off by health care providers. Id. at 821. The Court noted that in both of these cases, an employee’s actual liability for the expenses was required. Id. Nonetheless, the burden of proof clearly rests with the employer.

The decision in Farmer-Cummings rests solely on the basis of the Court’s construction of two workers’ compensation statutes. However, TRU urges us to decide that the Farmer-Cummings case has application beyond a workers’ compensation setting so as to provide TRU relief in this case.

Even if we were inclined to engraft our supreme court’s interpretation of these workers’ compensation statutes onto civil litigation cases, the posture of this particular case does not allow us to isolate and decide the pinpoint issue framed by the Court in Farmer-Cummings. This is because our resolution of the issues raised by TRU in points three and four is.handicapped due to the fact that Ms. Porter’s medical exhibits and bills complained of are not a part of the record on appeal. Nor was there an offer of proof made to the trial court regarding the disputed medical charges. Accordingly, we have no way of knowing from the record if the kind of bad debt write-offs and fee adjustments contemplated by Farmer-Cummings existed in this case and were specifically pointed out to the trial court. Of course, TRU and its able counsel did not have the benefit of Farmer-Cummings and its reasoning during the trial of this case.

In order to demonstrate the prejudice alleged by TRU, it needed to establish both at the trial and appellate levels what in fact happened with Ms. Porter’s bills. Ms. Porter’s counsel has submitted some health care statements attached to a supplemental brief. But, these statements were not trial exhibits, and it is still unclear on appeal what the trial judge and jury saw. “ ‘Documents, depositions, etc., which are only attached to a party’s brief and not contained in the legal file, are not part of the record and will not be considered on appeal.’ ” Choate v. Natvig, 952 S.W.2d 730, 733 (Mo.App. S.D.1997) (quoting Strycharz v. Barlow, 904 S.W.2d 419, 426 (Mo.App. E.D.1995)). Moreover, the reasons for any reductions in the bills were never fully explained.

During a bench conference, TRU requested permission to ask of Ms. Porter the two questions set forth above regarding her medical bills. After the trial court denied the request, TRU failed to make an offer of proof or outline what the expected testimony would have been and how it would have been favorable to its position. Our courts have long held that “[n]othing is preserved for appellate review when a court rejects evidence, in the absence of an offer of proof.” Tile-Craft Prods. Co. v. Colonial Properties, Inc., 498 S.W.2d 547, 549 (Mo.1973). In Wilkerson v. Prelutsky, 943 S.W.2d 643, 646-47 (Mo. banc 1997), the Missouri Supreme Court discussed the reasons underlying the rule requiring an offer of proof; quoting John W. Strong et al., McCormick on Evidence § 51 (4th ed.1992), the Court explained:

“While a secondary reason for an offer of proof is that it permits the judge to consider further the claim of admissibility, the primary reason is to include the proposed answer and expected proof in the official record of the trial, so that in case of appeal upon the judge’s ruling, the appellate court may understand the scope and effect of the question and proposed answer in considering whether the judge’s ruling sustaining an objection was proper.”

When Mrs. Porter’s medical bills were offered, TRU objected by referring the court to its previously denied motion in limine, in which it had sought to exclude evidence of medical expenses that were written-off. When the trial court again overruled TRU’s objection, TRU did not seek to make an offer of proof. TRU never offered any documentation or explanation of any alleged write-offs.

Even if we were to assume that Ms. Porter’s medical changes exceeded the amount paid to satisfy them, without the ability to review the medical expenses we don’t know the specific reason for the reductions. Generally an offer of proof allows the Appellate Court to consider a claim of admissibility. In this case an offer of proof would have provided this court with the ability to evaluate TRU’s argument for the inadmissibility of evidence.

We are left to speculate about the nature of Ms. Porter’s medical expenses that TRU wanted excluded. Because we cannot discern a full understanding of TRU’s claims of error from the record on appeal, we are prevented from resolving those claims “ ‘with some degree of confidence that our decision is reasonable, fair and accurate.’ ” Choate, 952 S.W.2d at 783 (quoting C-4 Corp. v. E.G. Smith Constr. Prods., 894 S.W.2d 242, 244 (Mo.App. E.D. 1995)).

Accordingly, Points III and IV are denied.

Point V

In its fifth point on appeal, TRU claims that the trial court erred in denying its motion for remittitur. It contends that the jury’s verdict of $800,000 exceeded Ms. Porter’s own valuation of the fair and reasonable compensation for her damages. Specifically, TRU claims that the award exceeded Ms. Porter’s sworn interrogatory response that stated her damages as her medical bills plus an additional $200,000 for a total of just over $233,000.

The record shows that Ms. Porter sought, and was granted, leave to amend her prayer for damages to her medical bills plus $290,000 for a total of just over $323,000. Rule 55.33(a) provides that leave to amend pleadings “shall be freely given when justice so requires.” A trial court has broad discretion to allow the amendment of a pleading to alter the prayer for damages even after trial has commenced. Geiser v. Burlington N. R.R. Co., 722 S.W.2d 122, 125 (Mo.App. E.D. 1986). The trial court’s ruling will not be overturned absent a clear abuse of discretion. Id.

Ms. Porter moved to amend her prayer for damages based on her medical condition and her life expectancy of 29.5 years. The amendment did not inject new causes of action or require TRU to explore additional defenses. TRU did not seek a continuance in response to the motion to amend. In fact, the trial court invited TRU to reopen the evidence, but it declined. Under these circumstances, the trial court did not abuse its discretion in allowing Ms. Porter leave to amend her pleadings. See, e.g., Id. The jury’s verdict of $300,000 was within Ms. Porter’s prayer for damages. The trial court did not err in denying TRU’s motion for remittitur.

Point V is denied.

Point VI

In its sixth and final point on appeal, TRU claims that the trial court plainly erred in allowing certain comments by Ms. Porter during closing argument. TRU did not object to the comments at trial. Accordingly, it requests plain error review under Rule 84.13(c). “Rarely will comments made during closing argument rise to the level of plain error entitling a party to relief.” Morgan Publ’ns, Inc. v. Squire Publishers, Inc., 26 S.W.3d 164,170 (Mo.App. W.D.2000). Plain error occurs only if the “ ‘closing argument contains reckless assertions, unwarranted by proof and intended to arouse prejudice, which, therefore, may be found to have caused a miscarriage of justice.’ ” Id. (quoting Hensic v. Afshari Enters., Inc., 599 S.W.2d 522, 526 (Mo.App. E.D.1980)).

TRU first complains about the following comments:

They don’t care. They don’t know back in New Jersey at corporate headquarters. They are sitting back there in a walnut paneled boardroom, and this is nothing ... You saw these fancy blowups they had. Every one of those blowups is the cost of a new suit. Wouldn’t it be nice to spend that money walking down the aisle in the Toys “R” Us store and just figuring out what happened? ... I don’t know why their corporate man back in New Jersey answered that way under oath. They knew Mr. McGannon did this. That’s just indicative of the way they handled this whole case.

TRU argues that these comments were made solely to inject prejudice against it as a corporate defendant. It also asserts that the comments were made to call attention to the large difference in financial positions of the parties and to pit Ms. Porter against the “aristocratic” corporate defendant.

Indeed, references to the size, wealth, and corporate status of a party are improper when intended to arouse prejudice and are not within the scope of legitimate argument. Gilbert v. K.T.I., Inc., 765 S.W.2d 289, 300 (Mo.App. W.D.1988). However, the above comments were legitimate comments about the evidence. At trial, Ms. Porter introduced evidence that TRU failed to investigate the incident and was indifferent to it. For example, Ms. Porter elicited testimony from the store manager that he did not remember talking to the employee who dislodged the stroller after the incident. Ms. Porter also introduced TRU’s interrogatory answers that it could not identify either the employee who dislodged the baby stroller or the stroller that struck Ms. Porter. In light of the evidence, the comments by Ms. Porter’s attorney were reasonable. Even if some of the comments touched on the wealth of TRU, the comments did not cause a miscarriage of justice.

TRU next complains about the following comments:

This is her day for justice. We do not want sympathy.... But she wants you to know and made sure that I asked that she is not wanting you to give her a thing. She wants justice.

TRU asserts that these comments were prejudicial because Ms. Porter never pleaded punitive damages. Along with these comments, Ms. Porter’s counsel added, “She wants you to do what you think is fair and just and right.” This argument does not indicate that Ms. Porter was seeking more than fair compensation. The comments were not improper.

Finally, TRU refers to two other comments by Ms. Porter’s counsel. It fails, however, to explain why the statements were improper or prejudicial.

The trial court did not plainly err in allowing these comments during closing, so Point VI is denied.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment.

      . Section 287.270 provides in pertinent part, "No savings or insurance of the injured employee, nor any benefits derived from any other source than the employer or the employer’s insurer for liability under this chapter, shall be considered in determining the compensation due hereunder.”

      . Overruled in part on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

      . Ms. Porter’s medical bills totaled $33,702.95.

      . We again note that Farmer-Cummings was handed down while this case was on appeal. We allowed the parties supplemental arguments to address its effect, but neither party had the benefit of the rationale of Farmer-Cummings when dealing with the medical bill issues during trial.


source: Caselaw Access Project

author: THOMAS H. NEWTON, Presiding Judge.

license: Public Domain

text:
    In the Matter of the Care and Treatment of James E. LEWIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 62339.
    Missouri Court of Appeals, Western District.
    Oct. 5, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 28, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Emmett D. Queener, Columbia, MO, for Appellant.
    Cherylayn C. Nield, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and RONALD R. HOLLIGER, JJ.
   THOMAS H. NEWTON, Presiding Judge.

BACKGROUND

Since 1980, Mr. James E. Lewis has been convicted of three sex crimes. Before his scheduled release from prison, the state began civil commitment proceedings against Mr. Lewis under Missouri’s sexually-violent predator (SVP) law, asserting that he is a sexually-violent predator. See §§ 632.480-632.513. The jury returned a unanimous verdict and found that Mr. Lewis “should be committed to the Department of Mental Health for control, care, and treatment as a sexually violent predator.”

Legal Analysis

Preservation of Error — Objection to the Verdict Form

In his first point, Mr. Lewis argues that the verdict form was defective because it did not require the jury to find that he is a sexually-violent predator. As the State points out, however, this is not the same objection that Mr. Lewis raised during the instruction conference. At that time, he objected only that the verdict form required “a finding not required by the statute.” In his subsequent motion for new trial he objected not only that the verdict form required a finding that was not required by the statute but that it also “fail[ed] to require the jury to actually find [Mr. Lewis] is a sexually violent predator.” Mr. Lewis again objects on appeal that the verdict form failed to require the jury to find that he is a sexually-violent predator.

“[A]n objection to a verdict form may not be raised for the first time in a motion for new trial.” Adams v. Children’s Mercy Hosp., 848 S.W.2d 535, 541 (Mo.App. W.D.1993). “To be timely raised, an objection must be raised either at the instruction conference, or when the verdict is returned by the jury, before it is accepted by the court.” Id. Because Mr. Lewis objected for the first time in his motion for new trial that the verdict form failed to require the jury to find that he is a sexually-violent predator, he has waived that objection here. See id. We can review his first point only for plain error. Rule 84.13(c). Plain errors are clear, evident and obvious. State v. Hawthorne, 74 S.W.3d 826, 829 (Mo.App. W.D.2002). We will “find plain error only where the alleged error facially establishes substantial grounds for believing that a manifest injustice or miscarriage of justice has occurred.” State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003) (internal quotation marks and citation omitted). To establish that an error involving a verdict director or a verdict form rises to the level of plain error, Mr. Lewis “must demonstrate that the trial court so misdirected or failed to instruct the jury that it is evident that the instructional error affected the jury’s verdict.” Id. We do not believe that any error in the verdict form in this case rises to such a level.

The jury in a civil commitment trial must find unanimously and beyond a reasonable doubt that the person is a sexually-violent predator. § 632.495. Mr. Lewis argues that the verdict form in this case focuses on whether he should be committed to the Department of Mental Health— at best, an irrelevant finding given the jury’s sole duty to announce whether he is a sexually-violent predator.

“In construing the verdict and judgment, a few general rules must be observed.” Morse v. Johnson, 594 S.W.2d 610, 616 (Mo. banc 1980). First, “the verdict must be clear and unambiguous so that a judgment may be written upon it without resorting to inference or to construction.” Id. Second, “if from a consideration of the whole record the meaning of the jury can be made clear and the judgment is based upon what the jury actually found, it will be upheld.” Id. Third, “verdicts should be construed to give them effect if it can reasonably be done.” Id. Fourth, “the jury’s intent is to be arrived at by regarding the verdict liberally.” Id. And fifth, “although defective in form, if a verdict substantially finds the question in issue in such a way as will enable the court intelligently to pronounce judgment thereon for one or the other party, it is sufficiently certain.” Id.

The verdict form meets these criteria. Contrary to Mr. Lewis’ argument, the verdict form did not require the trial court to infer or construe that the jury found him to be a sexually-violent predator. The verdict form did not simply say that Mr. Lewis should be committed to the Department of Mental Health. It also said that he should be committed “as a sexually violent predator.” Although the verdict form may not be ideal, we cannot say that it so misdirected or failed to instruct the jury that it is clear, evident or obvious that the error affected the jury’s verdict.

In any event, “[v]erdict forms are not entitled to the same presumption as instructions in connection with preservation of error for appeal.” Vancil v. Carpenter, 935 S.W.2d 42, 48 (Mo.App. W.D. 1996). “The trial judge’s responsibility ... is much less when dealing with verdict forms as opposed to jury instructions. The form of the verdict is not an instruction, and it is the latter which is to guide the jury in reaching the proper verdict.” Lindsey Masonry Co. v. Jenkins & Assocs., 897 S.W.2d 6, 12 (Mo.App. W.D. 1995).

Mr. Lewis concedes that the trial court properly submitted a verdict director setting out the elements that the jury had to find beyond a reasonable doubt. That verdict director said:

If you find and believe from the evidence beyond a reasonable doubt:
First, that the respondent pleaded guilty to forcible sodomy in the Circuit Court of Jackson County, State of Missouri, on October 13, 1989, and Second, that the offense for which the respondent was convicted was a sexually violent offense, and
Third, that the respondent suffers from a mental abnormality, and
Fourth, that this mental abnormality makes the respondent more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility, then you will find that the respondent is a sexually violent predator.

Thus, the jury was correctly instructed that it had to find beyond a reasonable doubt that Mr. Lewis is a sexually-violent predator. And “[i]t is well-established law that the verdict directing instruction and the verdict form are to be read together.” Id. Since the verdict director correctly guided the jury in reaching its verdict and because that instruction must be read together with the verdict form, we do not believe that Mr. Lewis has demonstrated that the jury was misled or confused by the verdict form. Id. For these reasons, we deny his first point.

Instruction Error

In his second point, Mr. Lewis complains that the trial court erred in giving instruction number seven, which informed the jury about what would happen to him if the jury found him to be a sexually-violent predator. The instruction said: “If you find [Mr. Lewis] to be a sexually violent predator, [he] shall be committed to the custody of the director of the Department of Mental Health for control, care and treatment.” Mr. Lewis argues that the trial court should not have given this instruction for two reasons. First, he argues that the instruction diverted the jury from its sole responsibility — determining whether he is a sexually-violent predator — by focusing on treatment, a matter irrelevant to the jury’s deliberations. Second, he argues that the instruction minimized the jury’s sense of responsibility for its verdict by emphasizing that the purpose of the law is treatment, as opposed to confinement.

We will not reverse the trial court’s ruling on an instruction unless the trial court abused its discretion. In re Care & Treatment of Scates, 134 S.W.3d 738, 741 (Mo.App. S.D.2004). And “[t]he giving of an alleged erroneous instruction is not grounds for reversal unless the appealing party was prejudiced thereby.” Id. (internal quotation marks and citation omitted).

Ordinarily, we would look to the Missouri Approved Instructions for guidance in resolving this question. Whenever MAI contains an instruction applicable to a particular case, that instruction must be given to the exclusion of any other instruction on the same subject. Rule 70.02(b). As this court’s southern district recently pointed out, however, there are no applicable MAI instructions in SVP cases. Scates, 134 S.W.3d at 742. When there is no applicable MAI instruction — so that the court must give a non-MAI instruction — the instruction given must be “simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” Rule 70.02(b). And in giving such a non-MAI instruction, “the court must adopt an instruction that follows the substantive law and can be readily understood by the jury.” Scates,. 134 S.W.3d at 742 (internal quotation marks and citations omitted).

The instruction in this case followed the substantive law, which specifically says:

If the [SVP] trial is held before a jury, the judge shall instruct the jury that if it finds that the person is a sexually violent predator, the person shall be committed to the custody of the director of the department of mental health for control, care and treatment.

§ 632.492, RSMo. Cum.Supp.2003.

Recognizing that such an instruction follows the substantive law, this court’s southern district recently approved the giving of it. See Scates, 134 S.W.3d at 741-42. Accord, In re Care & Treatment of Boone, No. ED 82669-01, 2004 WL 1880904, at *5 (Mo.App. E.D. Aug.24, 2004). Like the instruction in this case, the instruction in Scates said: “If you find [Appellant] to be a sexually violent predator, [the Appellant] shall be committed to the custody of the director of the department of mental health for control, care and treatment.” 134 S.W.3d at 742. And like Mr. Lewis, the appellant in Scates argued that the instruction was improper because it diverted the jury from its sole responsibility and because the instruction minimized the jurors’ sense of responsibility for their verdict. Cf. id. at 741-^12. The court found these arguments unpersuasive in light of the clear command contained in section 632.492. Id. at 742.

The southern district also found these arguments unpersuasive because Mr. Scates had tendered an instruction that contained the same language as the given instruction. Id. It appears that Mr. Lewis likewise tendered an instruction containing the same language as the instruction that the court ultimately gave in this case. For these reasons, Mr. Lewis’ second point lacks merit and is denied.

Limitations on Cross-Examination

In his third point, Mr. Lewis contends that the trial court abused its discretion when it prohibited him from cross-examining his former probation and parole officer to show that Mr. Lewis would still be under supervised probation even if he were released following the SVP hearing. Mr. Lewis contends that the evidence was relevant to his defense because the safeguard of rigorous supervision during probation makes it less likely that he would “engage in predatory acts of sexual violence if not confined in a secure facility.” § 632.480(5).

“A trial court has considerable discretion in determining whether evidence should be admitted or excluded.” Thornton v. Gray Auto. Parts Co., 62 S.W.3d 575, 583 (Mo.App. W.D.2001). We may reverse the trial court only when the exclusion of evidence amounts to such an abuse of discretion as to shock the sense of justice or indicate an absence of careful consideration. Id. Even then, however, we will not reverse unless the error had a material effect on the merits of the action. Id.

None of the cases cited by Mr. Lewis supports his claim that the trial court abused its discretion on this question. In re Avery involves a sex offender classification hearing rather than a civil commitment proceeding. See 47 P.3d 973, 975 (Wyo.2002). Unlike the Missouri sexually-violent predator statute, the Wyoming statute in Avery specifically provided for consideration of “[c]onditions of release that minimize risk of reoffense, including whether the offender is under supervision of probation or parole.” Id. And unlike this case, Avery did not address the exclusion of evidence, but rather the sufficiency of the evidence presented. Id. For these reasons, Avery is inapposite.

In In re Commitment of Lombard, jurors in a civil commitment hearing sent a note to the trial court during deliberations, asking what would happen if the subject of the hearing were discharged from custody. 271 Wis.2d 529, 678 N.W.2d 338, 341 (2004). Specifically, the jurors wanted to know whether he would be on parole or some form of supervised probation. Id. The trial court responded by telling the jurors that they should not be concerned about what would happen because the court would address that issue after the jury addressed the only issue before it: whether the subject was a sexually-violent predator. Id. On appeal, the subject of the hearing insisted that the trial court should have told the jurors that he would remain under supervision of the state department of corrections if he were discharged because that information “was crucial to the determination the jury was asked to make on his future dangerousness.” Id. at 342. The Wisconsin Court of Appeals rejected this argument, pointing out that neither case law nor statutes required the trial court to instruct the jury on the consequences of discharge and holding that such consequences were irrelevant to the sole question before the jury— whether the subject was a sexually-violent predator. Id. at 342-43. As the court explained:

The answer to that question ... depended upon whether Lombard had a mental disorder that created a substantial probability he would engage in future acts of sexual violence. The jury was not asked to decide whether there were conditions that would make Lombard less dangerous if he were discharged.

Id. at 343.

Mr. Lewis correctly cites Commonwealth v. Beeso for the proposition that “additional opportunity for supervision of the defendant in the context of a criminal sentence, through parole or probation is viewed by experts as a protective element that would lower risk.” No. 011649, 2003 WL 734415, at * 7 (Mass.Super.Feb.3, 2003). But that Massachusetts case does not explain the source of the quoted statement; it tells us nothing about whether such a view would (or should) prevail under Missouri’s SVP statute.

The pair of California cases that Mr. Lewis cites do not apply either because one is an unpublished opinion that cannot be considered as precedent, and the other does not support the argument. Furthermore, Mr. Lewis fails to cite a recent California decision that expressly rejects a nearly identical argument. See People v. Krah, 114 Cal.App.4th 534, 7 Cal.Rptr.3d 853, 859-61 (2003). Like Mr. Lewis, the subject of the SVP hearing in Krah argued that the trial court abused its discretion by excluding evidence regarding the terms and conditions of parole if released from custody. Id. at 859. Mr. Krah argued that this evidence was relevant to the jury’s determination of his likelihood for engaging in sexually-violent criminal behavior. Id. at 860.

Similar to Missouri’s SVP statute, the California law defines a sexually-violent predator as “a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” Id. at 859-60 (internal quotation marks and citation omitted).

The California Court of Appeals concluded that evidence regarding probation and parole was not relevant to the determination that the jury must make under the California SVP law and said:

Krah’s theory of relevance reflects a fundamental misunderstanding of [the California statute]. This statutory provision directs the trier of fact to determine whether the defendant has a “diagnosed mental disorder ” that predisposes him to engage in sexually violent criminal behavior. Evidence of the terms and conditions of a parole release is simply not relevant to the determination whether the defendant has the type of medical condition that is an element of the definition of a sexually violent predator. Further, admitting such evidence might well confuse and mislead a jury. For example, a jury presented with such evidence might mistakenly base its determination on an assessment of the likely effectiveness of the policing function or the prospective parole officer rather than on the relevant evidence pertaining to the defendant’s actual mental condition. Section 6601(a)(1) simply does not ask or even permit the trier of fact to consider whether imposing temporary restrictions on the defendant’s liberty while he is out of custody would effectively prevent him from committing offenses that his condition otherwise disposes him to commit.

Id. at 860.

The same is true under Missouri’s SVP statute. The question is whether Mr. Lewis “suffers from a mental abnormality” that makes him “more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.” § 682.480(5), RSMo Cum.Supp.2008. The question is not whether some external constraints make it less likely that he would engage in such acts. Because the trial court did not abuse its discretion in excluding evidence of probation, Mr. Lewis’ third point is denied and the judgment of the trial court is affirmed.

HAROLD L. LOWENSTEIN and RONALD R. HOLLIGER, JJ. concur.

      . Unless otherwise indicated, all statutory references are to RSMo 2000.

      . Unless otherwise indicated, all rule references are to Missouri Court Rules (2004).

      . Although the case before us pertains to a civil commitment proceeding, the rules governing plain error in civil and criminal cases are "substantially similar such that cases construing one may be equally applicable to plain error review under the other.” Davolt v. Highland, 119 S.W.3d 118, 135 n. 14 (Mo.App. W.D.2003).

      . People v. Samuel, No. 8162722, 2004 WL 616310 (Cal.App. 2 Dist. March 30, 2004)

      . People v. Grassini, 113 Cal.App.4th 765, 6 Cal.Rptr.3d 662 (2003).


author: PER CURIAM.

text:
    In the Interest of S.P. & A.P., Juvenile Officer, Respondent, v. R.P., Appellant, M.C., Defendant, John Doe, Defendant.
    Nos. WD 63774, WD 63775.
    Missouri Court of Appeals, Western District.
    Oct. 5, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    Laura Higgins Tyler, Kansas City, MO, Appellant.
    Melissa Stanosheck, Kansas City, MO, Respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM.

Appellant R.P. (Mother) appeals the juvenile court’s judgment terminating her parental rights to her children S.P. and A.P. Mother claims that the court abused its discretion in finding that termination was in the children’s best interests.

Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Pamela OSTRANDER, Respondent, v. Jerry K. O’BANION, D.O., Appellant.
    No. WD 62548.
    Missouri Court of Appeals, Western District.
    Oct. 5, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 28, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Susan Ford Robertson, Columbia, for Appellant.
    Lee Harrison Bushie, Rolla, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Dr. Jerry O’Banion appeals the judgment following a jury verdict in favor of Pamela Ostrander on her claim of medical negligence in the performance of a laparo-scopic cholecystectomy, or gallbladder removal surgery. As a result of this surgery, she experienced a complication that required two more surgeries to correct. Dr. O’Banion appeals claiming that the plaintiffs verdict directing instruction was erroneous because it did not submit an ultimate fact necessary to establish the specific theory of negligence and was a roving commission. We disagree and find that the verdict director accurately presented the issues to be determined by the jury.

Facts and Procedural History

During the spring of 1999, Pamela Os-trander began experiencing prolonged pain in her right side. Upon referral by her family doctor, she visited Dr. O’Banion for an examination. As a result Dr. O’Banion performed a laparoscopic cholecystectomy (gallbladder removal). The surgical procedure is conducted by making four small incisions in the patient’s abdomen through which the surgeon inserts a camera and the necessary operating tools. The surgeon, then, observes the operating field by way of a monitor.

The cystic duct and cystic artery are connected to the gallbladder and must be occluded with hemoclips, which are like staples, before the gallbladder can be removed. The cystic duct joins the common hepatic duct, also known as the common bile duct, which carries bile from the liver to the small intestines. After the surgery Mrs. Ostrander experienced severe pain in her right side and noticed a discoloration of her hands and face. Dr. O’Banion referred her to Dr. Ward, a gastroenterology specialist. Dr. Ward performed an endoscopic retrograde cholangiopancreatogra-phy, or ERCP, which found a blockage of the common bile duct. He then injected dye into the ducts in order to obtain an x-ray of the flow within the ducts. The x-ray showed what Dr. Ward interpreted to be a ninety percent blockage in the flow of the common bile duct. He placed a stent in the duct, which almost immediately alleviated the pain. Such stents are prone to blockage, however, and Mrs. Ostrander had to undergo three more stent replacements.

After the third replacement, she continued to have pain and decided to undergo another surgery, as a more permanent solution to correct the flow of bile into her small intestines. This surgery carried a greater likelihood of complications than the laparoscopic cholecystectomy, and, even now that several years have passed since the surgery, there remains a slight possibility that Mrs. Ostrander will experience a stricture that could, once again, obstruct her bile flow. She has already experienced one complication when a knot formed and burst along her incision due to infection. A surgery was required to clear up the infection.

The testimony of all of the doctors at trial was that the obstruction to Mrs. Os-trander’s bile duct was caused by one of the hemoclips used to effect the removal of her gallbladder during the original surgery. Although there was contradictory expert testimony at trial as to why and how this hemoclip was misplaced, it was undisputed that the hemoclip was the cause of the obstruction.

Standard of Review

Whether a jury was properly instructed is a question of law and, as such, is reviewed de novo on appeal. Harvey v. Washington, 95 S.W.3d 93, 97 (Mo. banc 2003) (citing Kuzuf v. Gebhardt, 602 S.W.2d 446, 449 (Mo. banc 1980)). We will, however, view the evidence in the light most favorable to the submission of the instruction and disregard all contrary evidence and inferences. Wright v. Barr, 62 S.W.3d 509, 526 (Mo.App.2001).

Discussion

The challenged verdict director provided:

Your verdict must be for the plaintiff if you believe:

First, defendant placed a surgical clip in a position that extended partially across the common hepatic bile duct of plaintiff; and
Second, defendant was thereby negligent; and
Third, as a direct result of such negligence, plaintiff sustained damage.

Dr. O’Banion claims that the verdict director failed to submit a disputed, ultimate fact that defined the plaintiffs specific theory of negligence. Dr. O’Banion argues that Mrs. Ostrander chose to present evidence on the theory that he negligently placed the hemoclip across the common bile duct because he either misidentified the common bile duct as the cystic duct or failed to properly visualize the ducts.' He further states that he admitted the hemo-clip was “partially across” the common bile duct but that this was not the ultimate issue for the jury’s determination. Mrs. Ostrander counters that she actually presented a theory of negligence that allowed the jury to find Dr. O’Banion acted negligently without ever having to decide why or how the hemoclip came to be placed in a manner that blocked the flow of bile within the common bile duct.

“The purpose of the verdict directing instruction is to hypothesize propositions of fact to be found or rejected by the jury.” Lasky v. Union Elec. Co., 936 S.W.2d 797, 800 (Mo. banc 1997) (citation omitted). Such an instruction must hypothesize to the jury all ultimate facts necessary to sustain the verdict, Coon v. Dryden, 46 S.W.3d 81, 93 (Mo.App.2001), and must not assume a disputed fact, Harvey, 95 S.W.3d at 97. Which facts are ultimate facts must be determined on a case-by-case basis. Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 658 (Mo.App.1999). This decision depends on the specific theory of negligence presented by the plaintiff. Id.

Mrs. Ostrander presented the expert testimony of two doctors in order to establish the standard of care required of Dr. O’Banion in performing the laparoscopic cholecystectomy. While at least one of the doctors did state that he believed Dr. O’Banion misidentified the common bile duct as the cystic duct, he also testified:

Q. I want to make sure I understand. Doctor, allowing a surgical clip to be placed on the common duct or partially on the common duct, is that always beneath the standard of care?
A. Yes.
Q. Does it matter as to why a surgeon would make that mistake, in forming your opinion?
A. No.

Mrs. Ostrander’s other expert witness responded when asked whether he believed Dr. O’Banion violated the standard of care in this case:

A. My opinion [is] that he did perform below the standard of care by placing a hemoclip or clips across a structure, either the cystic duct or the cystic artery, so that it at least partially occluded the hepatic duct and so that there was an obstruction of that duct causing jaundice and other complications.

Dr. O’Banion relies on the testimony of his two experts, who agreed that the he-moclip occluded the hepatic duct but who believed the hemoclip was misplaced due to a phenomenon called tenting. Tenting occurs when the manipulation of the gallbladder necessary to carry out its removal results in the common bile duet being drawn up under the cystic duct. In their view, this could occur without negligence and Dr. O’Banion did not fail to identify or misidentify the common bile duct.

Dr. O’Banion asserts this testimony as a basis for his argument that whether he misidentified the common bile duct as the cystic duct was an ultimate fact and should have been included in the verdict director. Dr. O’Banion’s specific complaint is that the verdict director should have required the jury to find that the doctor either failed to identify or misidentified the biliary anatomy before he placed the surgical clips partially across the common bile duct.

O’Banion argues that the failure to submit the issue in this manner enabled the jury to find for Mrs. Ostrander by virtue of the adverse result because the instruction, as given, did not submit the act or omission complained of as required by M.A.I. 21.01. The effect of this erroneous instruction, says Dr. O’Banion, was that the jury was given a roving commission because the verdict director assumed the disputed fact of whether the doctor failed to identify or misidentified the common bile duct. Dr. O’Banion is correct that he and his expert disputed whether the doctor failed to identify or misidentified the duct. Not all disputed facts are to be submitted to the jury, however. Only disputed ultimate facts are presented to the jury, as opposed to evidentiary facts.

The purpose of this distinction is to “avoid undue emphasis of certain evidence, confusion, and the danger of favoring one party over another.” Schiles v. Schaefer, 710 S.W.2d 254, 265 (Mo.App.1986). This statement of purpose, however, provides little aid in determining whether a disputed evidentiary fact is also an ultimate fact that is to be included in an instruction. Despite no lack of effort by the courts and commentators, it has not been possible “to fashion precise, universally applicable definitions which explicitly differentiate evi-dentiary facts from ultimate facts.” Id. (quoting Grindstaff v. Tygett, 655 S.W.2d 70, 73 (Mo.App.1983)).

Thus we are forced to make the distinction on a case-by-case basis, guided only by the general principles stated above and the holdings of other cases as to whether or not a particular submission was or was not an ultimate fact (that has to be submitted) or an evidentiary fact (that does not need to be and should not be submitted). Id. Dr. O’Banion cites Grindstajf in support of his argument. There, the verdict directing instruction submitted as the act of negligence whether “defendant performed a midforceps rotation delivery when such procedure was not medically proper.” 655 S.W.2d at 72 (italics added). The defendant’s complaint with the instruction was not the submission of whether a midforceps delivery was a negligent act but with the emphasized phrase. The evidence at trial was that under some circumstances a mid-forceps delivery would be proper but that in others it would not. The Ghindstaff court held that, because the instruction could have been interpreted in a number of ways by the jury, it was a “roving commission” permitting the jury to speculate in what manner the midforceps procedure was “not medically proper”. Id. at 74.

Subsequent cases have considered whether verdict directors in medical negligence cases have utilized technical terms without definition or been vague and too general and, therefore, allowed the jury to speculate. If the court feels the instruction does this, it is categorized as “a roving commission.” But the instruction, here, and the argument made by Dr. O’Banion are different. He does not contend that the instruction was vague or too general or submitted vague or technical terms that allowed the jury to speculate about the facts without confines by a proper instruction. Nevertheless, Dr. O’Banion’s argument is, on its face, appealing in that it goes to what we believe was the real deficiency of the instruction in Grindstaff.

The essential problem in our view with the Grindstaff instruction was that it did not hypothesize for the jury the ultimate disputed fact of whether the circumstances (facts) existed in that case that made the procedure improper. As Dr. O’Banion properly points out, a proper instruction must include what particular act of omission constitutes negligence. Gomez v. Constr. Design, Inc., 126 S.W.3d 366, 371 (Mo. banc 2004).

This principle, perhaps, may be better understood by considering some fundamental principles of negligence claims and how those claims are submitted to juries. The elements of a negligence claim, most simplistieally stated, are: (1) the existence of a legal duty owed to the plaintiff, (2) breach of that duty through a negligent act by the defendant, (3) proximate causation between the breach and the resulting injury, and (4) resulting damages. O.L. v. R.L., 62 S.W.3d 469, 474 (Mo.App.2001).

In this medical negligence case, as in many other negligence cases, there is no question of legal duty. Breach of duty refers to the commission or omission of an act that the actor should or should not have done in accordance with the relevant standard of care, in the jury’s view. See id. at 476. In all negligence cases, the question of “duty,” in this sense of the word, is at issue and is submitted to the jury for its resolution. See Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 265 (Mo.App.2002). The question, simply stated, is what act should the tortfeasor have done or not done under the particular facts of the case, that can be characterized under the applicable definition as negligence. See id. at 267.

In a simple auto case, this might be expressed as: (1) the law requires a driver to stop at a traffic signal (the legal duty), (2) the driver failed to stop (breach of the duty), (3) that breach constituted negligence, and (4) that negligence caused the plaintiffs damages. See MAI 17.01 (1980). Some commentators have referred to this distinction as between legal duty which they classify as a general duty to a broad class (such as other vehicle operators, pedestrians, etc. or, for example, patients generally) and the specific duty under the particular facts and circumstances that'the defendant owed to the particular person in a specific case. See Thornton, 92 S.W.3d at 267.

In professional negligence cases, including actions against doctors, the specific duty is defined by the profession, itself. That is, an expert witness is generally necessary to tell the jury what the defendant should or should not have done under the particular circumstances of the case and whether the doing of that act or the failure to do that act violated the standards of care of the profession (and, thus, constituted negligence). See MAI 11.06. Thus, what is the ultimate fact is the act or omission (required to be stated by the expert) that constitutes negligence.

How or why the physician committed or omitted the act is evidentia-ry detail not to be submitted unless the how or why would also constitute the ultimate fact or omission that is negligent. In many cases, the physician’s reasons why an act was committed or not committed are directly related to whether that act or omission breached the standard of care. Consider, again, Grindstaff in this context. Use of forceps in delivery of a child is proper care under certain circumstances (defined by the medical profession). Use of a mid-forceps rotation may be proper or it may be improper. Determination of the procedure’s propriety depends upon the facts faced by the physician, and under what facts it is proper or improper is, again, defined by the medical profession. It is a jury issue, if disputed, whether the particular facts existed which made the procedure improper.

Contrast Grindstaff with the evidence in this case. Under Mrs. Ostrander’s theory of negligence (and supported by her experts) it is always a breach of duty to place the clip on the common bile duct. It was their explanation of the standard of care that, although there may be different reasons how or why the clip was placed (whether by misidentification, failure to identify, or tenting), the reasons for the improper placement ultimately make no difference. It is, they say, the ultimate act of placing the clip across the duct that was the breach. In that sense, this case is somewhat different from the more common case, where the adverse result of a surgical procedure may or may not constitute a breach of the standard of care. The verdict director did not assume a disputed fact (failure to identify or misidentification) simply because, under the opinions of plaintiffs experts, that fact was irrelevant.

Obviously, Dr. O’Banion’s experts differed with this statement of the standard of care, but that difference in opinion was for the jury to resolve. Ultimately, the question in evaluating a verdict director is whether it submits facts upon which the jury can find for either party. Under this instruction, the jury could find for Dr. O’Banion if either they believed his experts statement of the standard of care or believed that he was not negligent. Spain v. Brown, 811 S.W.2d 417, 424 (Mo.App.1991). In other words, the instruction posited for the jury whether the placement on the bile duct is always negligent or is not negligent when the doctor identifies the duct and/or his identification is clouded by the tenting phenomena.

MAI 11.06 provides, “The term ‘negligent’ or ‘negligence’ as used in this [these] instruction^] means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession.” While Dr. O’Banion’ experts’ testimony certainly made misidentification of the common bile duct a disputed evidentia-ry fact, it did not make it an ultimate fact that must be submitted to the jury. Mrs. Ostrander’s two experts testified that placing the hemoclip in such a way as to occlude the common bile duct, whether caused by misidentification, tenting, or any other reason, is always a violation of the standard of care.

Dr. O’Banion’s experts disagreed with this statement of the applicable standard of care, but Mrs. Ostrander was entitled to have her own theory of the case submitted to the jury by instructions so long as “ ‘the instructions [were] within the pleadings and evidence[.]’ ” Wright v. Barr, 62 S.W.3d 509, 530 (Mo.App.2001) (quoting Orloff v. Fondaw, 315 S.W.2d 430, 433 (Mo.App.1958)). According to the specific theory of negligence presented by Mrs. Ostrander’s two expert witnesses, the ultimate fact to be decided by the jury was whether Dr. O’Banion placed the hemoelip “partially across” Mrs. Ostrander’s common bile duct. Under the evidence in this case, the jury was not given a roving commission to decide when or if the placement of the hemoelip was or was not negligence, unguided by expert testimony.

Because the verdict director accurately presented the issues to be decided by the jury, the trial court’s judgment is affirmed.

ROBERT G. ULRICH, Judge, and EDWIN H. SMITH, Judge, concur.

      . Some might argue that the quoted phrase was not a roving commission and that there was adequate evidence for the jury to determine when the procedure was proper. They could further argue that, if carried too far, the argument that an instruction was roving and could only be satisfied by submitting detailed evidentiary facts could return us to preMAI practices. Nevertheless, we rely, here, upon Grindstaff because there is a more essential error in the instruction given there, which, although noted by the court, has not been particularly emphasized in subsequent decisions as an essential basis for the Grindstajf holding.

        . A legal duty is created by the existence of a physician-patient relationship. See Millard v. Corrado, 14 S.W.3d 42, 46-47 (Mo.App.1999). Interestingly, although legal duty is often stated to be a question of law for the court, if there is a factual dispute about whether a physician-patient relationship existed, that may constitute an issue of fact that would be submitted to the jury. See, e.g., id. at 52 (factual dispute regarding existence of physician-patient relationship precluded summary judgment, as it could not be resolved as a matter of law).