declared unconstitutional, and in that sense Suzuki would not be aggrieved, the fact remains that under the statute as it now exists, Suzuki would still suffer "the actual injury" of having to pay 50 percent of the punitive damages award to the state. Moreover, the underlying premise that Suzuki would have to pay the full amount of the punitive damages judgment is merely an assumption that is open to question and that has not been litigated. It is arguable, for instance, that the 50 percent of the award in favor of the state simply lapses in light of the public policy behind the statute that plaintiffs should not receive the windfall of full punitive damage awards. In any case, the fact that the full punitive damages award might lawfully be imposed in favor of plaintiff does not mean that Suzuki lacks the standing to allege that a portion of the punitive damages award was unlawfully imposed in favor of the state. Although the issues concerning the constitutionality of section 537.675 are sufficient to invoke this Court's jurisdiction, it is unnecessary to address the merits of those issues. This Court, following a long line of cases, generally declines to rule on constitutional issues that are not essential to the disposition of the case, and retains jurisdiction nonetheless, where, as here, there is reversible error as to other issues. See, e.g., State ex rel. Director of Revenue v. Gabbert, 925 S.W.2d 838, 839 (Mo. banc 1996); Farm Bureau Town and Country Ins. Co. of Missouri v. Angoff, 909 S.W.2d 348, 353 (Mo. banc 1995); State ex rel. Williams v. Marsh, 626 S.W.2d 223. 227 (Mo. banc 1982); State v. Wilkinson, 606 S.W.2d 632, 635 (Mo. banc 1980). B. An alternative and independent ground for this Court's jurisdiction, is article V, section 10, of the Missouri Constitution, which allows this Court to transfer a case from the Court of Appeals before or after opinion "because of the general interest or importance of a question involved in the case." In recent years, this Court has invoked the jurisdictional ground of "general interest or importance" to retain jurisdiction of cases that had been improperly transferred to this Court under faulty jurisdictional claims. See Adams Ford Belton, Inc. v. Missouri Motor Vehicle Com'n, 946 S.W.2d 199, 201 (Mo. banc 1997); Kuyper v. Stone County Com'n, 838 S.W.2d 436, 439 (Mo. banc 1992). Even if jurisdiction in this case could not be based on Suzuki's constitutional challenge, jurisdiction is warranted by the presence of several questions of "general interest or importance," which are addressed extensively in this opinion. II. The circumstances of the accident, as set out in Suzuki I, and as recapitulated in the second trial, are as follows: On February 11, 1990, defendant Deborah Dubis was driving a Suzuki Samurai on Highway 94, with plaintiff Rodriguez and Lisa Nunnally as passengers. The vehicle left the right side of the roadway, traveled into the ditch, and struck a 14-inch-high dirt headwall--the side of a cemetery driveway. What happened next was hotly disputed. According to the driver and passengers, the Samurai returned to the
roadway, crossed the center line, and when Dubis turned sharply right to correct, the vehicle rolled over. According to Suzuki, the Samurai never returned to the roadway. Instead, the impact with the cemetery driveway launched the vehicle into the air, causing the Samurai to roll in the ditch. Id. at 106. The trial court instructed on plaintiff's claims of strict products liability, negligence, and punitive damages against Suzuki, on plaintiff's negligence claim against Dubis, and on a cross-claim Suzuki brought against Dubis. In its verdict for plaintiff, the jury set compensatory damages at $25 million, assessing fault at 99.85% to Suzuki, 0.15% to Dubis, and 0% to plaintiff. The jury also awarded punitive damages in the amount of $11.9 million. On motion for remittitur, the trial court reduced the award of compensatory damages to $20 million. The thrust of plaintiff's case was to establish that the accident was caused by a design defect that gave the Samurai a propensity to roll over in emergency driving situations like that encountered by plaintiff and her companions. As such, plaintiff was required to prove, inter alia, that the roll over propensity made the Samurai "unreasonably dangerous when put to a reasonably anticipated use" under the products liability theory, MAI 5th 25.04, and not "reasonably safe," under the negligence theory, MAI 5th 25.09. To meet that proof, plaintiff relied principally on a 1988 study conducted by Consumers Union and published in its magazine, Consumer Reports, and the testimony of two expert witnesses, both of whom were engineers who had personally tested the Samurai's roll over problem as part of studies made by independent companies under government contracts. The substantial evidence from these sources and others showed, in the most basic lay terms, that the Samurai had a center of gravity that was too high and was supported by a "track" (the wheel-to-wheel width along the axles) that was too narrow, thus causing it to overturn under certain "ordinary emergency steering maneuvers." According to the Consumers Union report and the experts, the Samurai had the lowest (worst) "rollover safety margin" of any SUV tested. In response to plaintiff's design defect evidence, Suzuki called its own expert witness who disputed the opinions made by Consumers Union and plaintiff's experts, as well as the methodology on which the conclusions were based. However, on hearsay grounds, the trial court disallowed the introduction of official reports from the United States and British governments that also contradicted plaintiff's evidence. Those reports, which ironically consisted of the results of investigations instigated by recall petitions from consumer groups, were published by the National Highway Transportation Safety Administration (NHTSA) in 1988, 1996, and 1997, and by the Transport and Road Research Laboratory (TRRL), an agency of the Great Britain Department of Transportation, in 1988. All the reports dealt directly with the Samurai's alleged roll over problem except the 1997 report, which involved two other SUVs, the Isuzu Trooper and the Acura SLX, but even that report focused on the validity of the roll over testing methodology that Consumers Union and plaintiff's experts used to
test the Samurai. That testing methodology -- called the "modified accident avoidance maneuver," or "CU2 maneuver" -- was criticized in all the reports. According to the 1998 NHTSA report, the test did "not have a scientific basis and cannot be linked to real-world crash avoidance needs, or actual crash data." Additionally, the NHTSA found that the Samurai's "static stability ratio" -- the ratio of the half track width of the vehicle to center of gravity height -- was well within the range for vehicles of its type, and further, that the Samurai's real-world performance on the nation's highways was comparable to that of most SUVs. It is noteworthy that the report also concluded that "[r]ollovers . . . often appear to have been influenced by adverse driver and environmental factors such as high risk driving maneuvers, drinking, low ambient light, and lack of driver familiarity with either the vehicle or the road." Conclusions to the same effect were set out in the 1988 TRRL and 1996 NHTSA reports that were prepared after additional investigations, and the 1997 NHTSA report reiterated the point that the Consumers Union testing methodology was invalid. A. There is no question that the government reports are highly relevant, but they are also hearsay. Suzuki claims the official records exception to the hearsay rule (sometimes called the public records exception) allows their admission, while plaintiff contends, and the trial court agreed, that the exception does not apply to opinions and conclusions contained within those records. Missouri has no statutory hearsay exception that encompasses public records in general, but a specific exception has been codified in section 490.220, RSMo 1994, for official records of the United States and sister states. That section states: All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal. As this Court has observed, section 490.220 is one of a number of statutes that eliminate the foundational requirements of authentication, best evidence, and hearsay for the admission of certain public documents. Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993). Referring to section 490.220, in particular, this Court then concluded that "[s]o long as the requirements of the statute are met and the records are relevant, they are admissible." Id.(FN2) The NHTSA reports, which are published in the Federal Register,(FN3) clearly meet the requirements of the section 490.220 exception. They are not only the records of the office books of the NHTSA,(FN4) but also of the Office of the Federal Register,(FN5) both of which entities are public offices of the United States. The second requirement of the statute -- that the reports be authenticated by the seal of the government agency in question -- is satisfied by the fact that the Federal Register is published under seal of the National Archives and Records Administration, which authenticates the Federal Register as the official serial publication established under the Federal Register Act. See 44 U.S.C. secs. 1501 et
seq. (1994); 1 C.F.R. sec. 2.3 (1998). Although there appears to be no case addressing the precise question here presented -- whether the statutory exception encompasses opinions and conclusions contained within the records -- the statute is unqualified and open- ended. Once the statutory foundational requirements are met, and plaintiff makes no contention that they were not met in this case, then the reports are admissible in their entirety. As such, the trial court erred in excluding them. Plaintiff does not discuss section 490.220 in her brief and relies instead on two treatises, Missouri Law on Evidence and Missouri Evidence Restated, that distinguish between reports containing facts, which are admissible, and reports containing opinions or conclusions, which are not. Mo. Law on Evidence (3d ed.), sec. 11-23, at 398; Mo. Evidence Restated, sec. 803(8) (MoBar 3d ed. 1996). Inexplicably, the treatises focus on the exception as if it were based strictly on the common law, and they cite neither section 490.220 nor any other of the other dozens of statutes that codify the exception on an ad hoc basis as it pertains to specific kinds of public records. See, e.g., sec. 339.130, RSMo 1994 ("[c]opies of records and proceedings of the [Missouri real estate] commission, and of all papers on file in its office . . ."); sec. 386.290, RSMo 1994 ("[c]opies of all official documents and orders filed or deposited according to law in the office of the [public service] commission, certified by a commissioner . . ."); sec. 490.180, RSMo 1994 ("[c]opies of all papers on file in the office of the secretary of state, state treasurer, state auditor, and register of lands . . ."); sec. 490.580, RSMo 1994 ("[t]he record books of marriages to be kept by the respective recorders . . ."). For a comprehensive list of Missouri statutes see 23 Mo. Practice section 803(8).1, n.4 (1992). It is enough concern, perhaps, that neither plaintiff nor the authorities she cited paid any heed to the special statute for United States government records, but it bears mention as well that the principal case on which the treatises rely -- Kansas City Stock Yards Co. v. A. Reich & Sons, 250 S.W.2d 692 (Mo. 1952) -- is hardly solid authority. In that case, this Court affirmed the trial court's exclusion of a fire investigation report prepared by officials of the Kansas City fire department for the reason that a critical notation in the report "was a conclusion based upon hearsay twice removed" and that "[i]t was an opinion upon the very question that jury was to decide . . . ." Id. at 700. Although the Court then acknowledged that there was an "exception to the hearsay rule admitting official reports made by an officer on the basis of his own personal investigation and knowledge," the Court then distinguished the case at hand by holding "in so far as documents set forth mere opinions or conclusions of public officials, they are inadmissible as official records or documents, . . ." (citing 32 C.J.S., Evidence, sec. 637, page 490). Id. Kansas City Stock Yards appears to be solely an exposition of the common law exception and does not purport to address United States government reports nor, for that matter, any other reports covered under statutory exceptions.
Aside from that, however, the Court's exclusive reliance on C.J.S. is also suspect. The key passage cited from C.J.S. omits the very next line that significantly qualifies the proposition. The complete sentence states, In so far as documents set forth the mere opinions or conclusions of public officials, they are inadmissible as official records or documents, at least where the official would not be competent to testify as to such opinion or conclusion, or where the opinion or conclusion is of doubtful reliability in the absence of the right of cross-examination. . . . 32 C.J.S., Evidence, sec. 637.(FN6) Given a fair reading, C.J.S. suggests that conclusions and opinions are admissible under the common law public records exception, at least in certain situations, but Kansas City Stock Yards took only the narrowest reading possible. That said, this Court leaves for another day the question of the proper scope of the common law public records exception, as the records in this case were admissible under section 490.220 regardless. Finally, this Court disagrees with plaintiff's policy suggestion that the admission of such "unbridled rank hearsay" is a grave mistake. In the first place, this Court has no choice in the matter because, as stated, admission of the reports is required by statute. In addition, under Rule 803(8)(c) of the Federal Rules of Evidence, United States government reports, conclusions and all, are routinely admitted for plaintiffs and defendants alike. See, e.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161-70 (1988), In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1481-83 (D. C. Cir. 1991); Federal Aviation Admin. v. Landry, 705 F.2d 624, 632-33 (2d Cir. 1983); Robbins v. Whelan, 653 F.2d 47, 50-52 (1st Cir. 1981); In re Multi-Piece Rims Products Liability Litigation, 545 F. Supp. 149, 150-52 (W.D. Mo. 1982). See also Michael A. DiSabatino, Annotation, Admissibility, Under Rule 803(8)(C) of Federal Rules of Evidence, of "Factual Findings Resulting From Investigation Made Pursuant to Authority Granted by Law." 47 A.L.R. Fed. 321 (1980). Moreover, the majority of other jurisdictions have followed suit with the adoption of similar rules. 5 Wigmore, Evidence sec. 1633a (Chadbourn rev. 1974 & Supp. 1998). As the Supreme Court has observed, there should be little concern over conclusions contained in such reports because they are "subject to the ultimate safeguard -- the opponent's right to present evidence tending to contradict or diminish the weight of those conclusions." Beech Aircraft Corp. v. Rainey, 488 U.S. at 168. Having determined that the NHTSA reports should have been admitted, it is necessary to address whether their exclusion was prejudicial. Certainly, the reports go to the heart of plaintiff's case -- the existence of a roll over design defect -- and this reason alone may justify reversal. Smith v. Wal-Mart Stores, Inc., 967 S.W.2d 198, 207 (Mo. App. 1998) (citing Kummer v. Cruz, 752 S.W.2d 801, 808 (Mo. App. 1988)). Additionally, the fact that the reports were generated by a government entity that is presumably independent and unbiased and whose ultimate function is to protect the public by seeking out product defects, if they exist, gave the reports great credibility. Kastner v. Beech Aircraft Corp.,
650 S.W.2d at 319. Indeed, that great credibility is the very reason behind the common-law hearsay exception for such reports. Id. It should be added that the reports were all the more important because Suzuki's own design defect expert was paid a handsome fee for testifying, and his credibility was thus subject to question, a point that plaintiff's counsel ably drove home to the jury. Finally, for all the above reasons, plaintiff's argument that the exclusion of the reports was not prejudicial because they were merely cumulative to the testimony of Suzuki's expert is unpersuasive. Plaintiff also maintains that no prejudice occurred because 1) Suzuki's expert (in apparent contravention of the trial court's ruling) testified that no government had accepted the CU2 maneuver as an indication of roll over propensity; and 2) Suzuki was allowed to introduce and argue the "fact"(FN7) that no recall had been ordered as a result of any of the NHTSA investigations. This limited evidence concerning the NHTSA decisions, however, does not touch on the reasons and analysis on which they were based. Without that information, plaintiff was allowed to discount the decisions as speculative or immaterial. Furthermore, the door was opened for accusations plaintiff made throughout the trial that the NHTSA decisions were based not on scientific analysis, but on political pressure from Suzuki. Under these circumstances, this Court concludes that the failure to admit the NHTSA reports was unduly prejudicial. Mindful of the fact that, absent settlement, this ruling will result in a third trial, the result is nonetheless consistent with the many cases holding that a new trial is mandated where a party was prejudiced by the improper exclusion of evidence. See, e.g., Washington by Washington v. Barnes Hosp., 897 S.W.2d 611 (Mo. banc 1995) (exclusion of evidence of free public school programming available to injured minor child on question of mitigation of damages in medical malpractice case); Shoemake v. Murphy, 445 S.W.2d 332 (Mo. 1969) (exclusion of landowner's offers to convey land for certain price in condemnation action); Felton v. Hulser, 957 S.W.2d 394 (Mo. App. 1997) (exclusion of admissions made in response to discovery requests by defendant); Sigrist v. Clarke, 935 S.W.2d 350 (Mo. App. 1996) (exclusion of portions of hospital records in malpractice action); State ex rel. Missouri Highway and Transp. Comm'n v. Beseda, 892 S.W.2d 740 (Mo. App. 1994) (exclusion of landowner's testimony and photographs relating to 20 ft. wide paved entrance in condemnation case); Siebern v. Missouri-Illinois Tractor & Equip. Co., 711 S.W.2d 935 (Mo. App. 1986) (exclusion of expert opinion on defective condition of coal loader in design defect case); and, of course, Suzuki If0 . Because reversal is required as to the NHTSA reports alone, this Court declines to address the application of the official records exception to the British TRRL reports, except to note that the issue is more problematic in the absence of a statute like section 490.220 and has not been fully briefed. B. The original NHTSA report and even the TRRL report, both issued in 1988, were independently admissible to
refute the punitive damages claim, though the scope of that admissibility was limited to Suzuki's "state of mind" in designing and marketing the Samurai.(FN8) During the punitive damages phase of the bifurcated trial, Suzuki offered the reports not to prove the truth of what was asserted in the reports, but instead to disprove plaintiff's allegation that Suzuki showed "complete indifference to or a conscious disregard for the safety of others." Proof of Suzuki's state of mind under the complete indifference/conscious disregard standard was the prerequisite for an award of punitive damages, MAI 5th 10.06, and therefore the information available to Suzuki concerning the safety of the Samurai as set out in the government reports was highly relevant evidence. Suzuki's knowledge of the content of the reports, in other words, bore directly on the question of Suzuki's alleged "complete indifference to a conscious disregard for the safety of others." Because the reports were offered only for this limited purpose, there was no hearsay violation. A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and which depends upon the veracity of the statement for its value. State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). Stated another way, evidence is hearsay only if its evidentiary value depends on drawing an inference from the truth of the statement. Id. at
- Furthermore, if the relevance of the statement lies in the mere fact that it was made, no reliance is placed on the
truth of the statement or the credibility of the out-of-court declarant, and the statement is not hearsay. Id. Although plaintiff makes no claim that the reports, at least in this limited context, were hearsay, she nonetheless maintains that the trial court committed no error in excluding them. Her twofold rationale is 1) that the reports were in fact offered for their truthfulness (that the Samurai was not defective), as opposed to Suzuki's state of mind, and 2) that the only relevance of the reports was the ultimate fact that no recall was ordered. The first point seems to be that Suzuki's offer of the reports as state of mind evidence was pretextual. However, the mere fact that evidence may be inadmissible for one purpose does not preclude its admission for an alternative legitimate purpose, State v. Jones, 979 S.W.2d 171, 182 (Mo. banc 1998). The evidence pertaining to Suzuki's state of mind served an alternative legitimate purpose because it was highly relevant without being hearsay. Plaintiff's recourse (had the evidence not been otherwise admissible under section 496.220) would have been to request a special instruction limiting the jury's consideration of the evidence to the sole issue of Suzuki's knowledge or state of mind. See id. As to the second point, the opinions and conclusions in the reports were no less relevant to Suzuki's state of mind than the ultimate "fact" that no recall was ordered. Those opinions and conclusions, as noted, formed the basis for the decision not to order a recall. For these reasons, plaintiff's points supporting the exclusion of the records have no merit. III.
The second evidentiary issue involves the scope of cross-examination permitted of one of plaintiff's design defect experts, Dr. Andrzej G. Nalecz. Dr. Nalecz, a former university professor, devised a computer simulation, known as the "Advanced Dynamics Vehicle Simulation" or "ADVS," that plaintiff introduced at trial and that purported to reconstruct plaintiff's version of the sequence of events at the scene of the accident. This was done to illustrate that the Samurai was unstable and would indeed roll over under those particular emergency conditions. In addition, plaintiff introduced a second Nalecz-designed ADVS featuring a different SUV, a Jeep Wrangler, that, when put to the same conditions, did not roll over. The dispute arose when counsel for Suzuki attempted to confront Dr. Nalecz on cross-examination with a 1992 memorandum he had written to his then department chair. The memorandum stated that the ADVS device was "practically unusable for investigating the handling behavior and stability of modern vehicles which utilize the latest technologies . . . ." In a second memorandum from 1993, Dr. Nalecz agreed that his ADVS had been discredited in other studies and concluded that "the ADVS is practically worthless since no one can make effective use of the simulation." The trial court sustained plaintiff's objection to this line of questioning and the introduction of the memorandums on the ground that the ADVS used to evaluate the accident had been modified to eliminate the problems. Moreover, the trial court refused to allow Suzuki's counsel to confront Dr. Nalecz with evidence that the new ADVS still contained virtually all the deficiencies identified in the earlier studies, despite the fact -- submitted by way of offer of proof -- that Dr. Nalecz appears to have conceded as much in a deposition given before trial. Whether Dr. Nalecz's post hoc explanation for his critique of the ADVS was right or wrong, Suzuki should have been allowed to cross-examine him about the matter. To be sure, "the extent and scope of cross-examination in a civil action is within the discretion of the trial court," and the trial court's discretion on such matters "will not be disturbed unless an abuse of discretion is clearly shown." Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 869 (Mo. banc 1993), (quoting Stafford v. Lyon, 413 S.W.2d 495, 498 (Mo. 1967)). However, in the exercise of that discretion in situations involving the cross-examination of expert witnesses, parties are to be given wide latitude "to test qualifications, credibility, skill or knowledge, and value and accuracy of opinion." Id. In this case, it was an abuse of discretion to limit the cross- examination of Dr. Nalecz. The error committed in this instance compounds the error in disallowing the government reports and reconfirms the earlier conclusion that reversal is required. IV. In view of the disposition of the case on the foregoing issues, this Court would usually decline to address other issues raised. See, e.g., Suburban Newspapers of Greater St. Louis, Inc. v. Director of Revenue, 975 S.W.2d 107,
110 (Mo. banc 1998); State v. Mayo, 915 S.W.2d 758, 759 (Mo. banc 1996). However, given the need for a third trial, and in recognition of the substantial litigation expenses that will be borne by all of the parties, a review of the two issues to which the parties have devoted most of their attention (other than the government records issue) is not inappropriate. Those issues are 1) whether the physician-patient privilege precludes the discovery of any blood alcohol tests taken of defendant Dubis in the hospital emergency room, and 2) whether this Court should incorporate the Restatement (Third) of Torts "risk-utility" test in the verdict directing instruction submitted in design defect cases. The issue concerning blood alcohol evidence arose in this way: Pending retrial, and in light of the holding from the first appeal that evidence of codefendant Dubis' alcohol consumption was admissible on the issue of her own negligence, Suzuki I at 105, Suzuki repeatedly sought discovery of the results of any blood alcohol tests taken of Dubis at St. John's Mercy Hospital, the hospital where she and the other injured parties were taken immediately after the accident. Claiming physician-patient privilege under section 491.060(5), RSMo 1994, Dubis moved to quash the various discovery requests, and each time, the trial court sustained the motions. Suzuki's petition for writ of prohibition and/or mandamus, filed first in the Court of Appeals and then in this Court, were both denied, in turn. At trial, the question of Dubis' alcohol consumption and the effect it had on her driving ability was hotly contested. By her own admission, Dubis drank at least three "sampler" glasses and two full-sized glasses of wine while visiting wineries shortly before the accident. This consumption, alone, according to a toxicologist called by Suzuki, would have yielded a blood alcohol content of 0.07% at the time of the accident. Nonetheless, Dubis' counsel was very effective in cross-examining the toxicologist and in introducing evidence tending to dilute the proof of Dubis' impairment. Undoubtedly, the result of blood alcohol tests would have been the strongest proof of Dubis' impairment, or lack thereof. In any event, when faced with alcohol impairment evidence that was both conflicting and uncertain, the jury apportioned only 0.15% fault against Dubis. A. On appeal, Suzuki contends that the trial court committed error in quashing its discovery requests for any blood alcohol tests. Plaintiff responds, as a preliminary matter, that the law of the case was fixed when the Court of Appeals, and later this Court, denied the petition for writ of prohibition on the discovery issue; therefore, the discovery issue is no longer reviewable. To the contrary, plaintiff's position does not comport with the law of the case doctrine, which provides, in general, that a previous holding in a case constitutes the law of the case and precludes relitigation of that issue on remand and subsequent appeal. Kansas City v. Keene Corp., 855 S.W.2d 360, 366 (Mo. banc 1993). However, the
doctrine is limited to cases in which the issue in controversy has been raised and decided in a prior appeal. Boillot v. Conyer, 861 S.W.2d 152, 154 (Mo. App. 1993); Davis v. J.C. Nichols Co., 761 S.W.2d 735, 741 (Mo. App. 1988). The mere denial of a petition for writ of prohibition where the appellate court issues no opinion is not a conclusive decision on the merits of the issue presented. Augspurger v. MFA Oil Co., 940 S.W.2d 934, 937 (Mo. App. 1997); State ex rel. Pain, Anesthesia and Critical Care Services, P.A. v. Ryan, 728 S.W.2d 598, 601-02 (Mo. App. 1987). Indeed, there are a number of reasons why the appellate court might decline to review a writ petition on the merits, not the least of which is the probability that the issue presented can be adequately reviewed, as here, on direct appeal after the facts pertaining to the issue are fleshed out more thoroughly at trial. See Rule 84.22. In sum, the law of the case doctrine has no application to the privilege issue now presented. The merits of the privilege issue are controlled by section 491.060, RSMo 1994, which states in pertinent part: The following persons shall be incompetent to testify: . . . (5) A physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon. This subsection and others that grant testimonial privileges are to be strictly construed against the privilege. State ex rel. Health Midwest Dev. Group, Inc. v. Daugherty, 965 S.W.2d 841, 843 (Mo. banc 1998). At first glance, and mindful of the rule of strict construction, it appears that the privilege applies only to the testimony of physicians. However, Missouri courts have repeatedly held that the privilege also extends to hospital and medical records. State ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997); State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. banc 1995). Under these cases, blood alcohol testing in hospital records is the kind of information that is subject to the privilege. To invoke the privilege, however, it must be shown that the information sought was "necessary" to the treatment of the patient. Sec. 491.060(5), RSMo 1994. Blood alcohol tests that were necessary as part of Dubis' treatment, are privileged; those that were not, are discoverable and admissible at trial. On this and all other issues concerning application of the privilege, the party seeking to invoke the privilege has the burden of proof. State v. Henderson, 824 S.W.2d 445, 450 (Mo. App. 1991); State v. Lewis, 735 S.W.2d 183, 187 (Mo. App. 1987) (citing Griffith v. Continental Casualty Co., 253 S.W. 1043, 1047[2] (Mo. banc 1923)). In most instances, that burden may be satisfied merely by showing that the records sought were hospital records compiled, as here, by medical personnel during the course of treatment of a patient. Nevertheless, while those facts may well satisfy the burden of proof for most hospital records and tests, blood alcohol tests are different. As stated in an uncontested affidavit filed by Suzuki during the discovery proceedings and
signed by Dr. Alan DuMontier, a board certified emergency room physician, "a large percentage of serum and/or urine ethanol [blood alcohol] levels performed in cases of vehicular trauma are not performed for purposes of treatment." To be sure, many blood alcohol tests are conducted not for purposes necessary for treatment of the patient, but for purposes of law enforcement. Due to the widespread concern about drinking and driving, the legislature has statutorily authorized blood alcohol tests to be administered at the request of law enforcement officials in connection with criminal investigations for offenses including operating a motor vehicle while intoxicated, sec. 577.020, RSMo 1994 and Supp. 1998, or a watercraft, sec. 306.116.1, RSMo 1994, or an aircraft, sec. 577.206.1, RSMo 1994. Additionally, blood alcohol tests are taken for statistical purposes when a person dies as a result of a motor vehicle accident and within eight hours of the accident. See sec. 58.445.2, RSMo 1994 and Supp. 1998; sec. 58.449, RSMo 1994. Yet another statute provides that a physician who treats a person for injuries sustained in a motor vehicle accident may report to the authorities that the person appeared intoxicated regardless of any rule of confidentiality. Sec. 334.265, RSMo 1994. Finally, given the cooperative roles that medical and law enforcement personnel play in enforcing Missouri's drunk driving laws, as illustrated by these statutes, there is also the more remote possibility that blood alcohol samples are taken in emergency rooms even without a specific request from a law enforcement officer, perhaps as a matter of routine or in anticipation of prosecutions for drunk driving. For these reasons, the burden of proof to invoke the privilege is not met by the mere assertion that blood alcohol testing was included in hospital records, as if all blood alcohol testing was necessary for treatment purposes. That said, however, this Court holds that Dubis met her burden of proof in this case by the introduction of uncontroverted evidence that the law enforcement officer who investigated the accident did not order a blood alcohol test. (FN9) In view of that additional evidence, and although it is a close question, the possibility that blood alcohol testing might have been for purposes other than Dubis' treatment need not be refuted as part of her burden of proof. Testing under that scenario, even when innocently conducted, may technically constitute an assault on the patient and a breach of medical ethics, and it is not a scenario that Dubis should be required to anticipate and disprove. On the other hand, even though Dubis met her burden of proof, on remand, Suzuki should still be allowed to introduce evidence, if it exists, to establish that the testing was not for treatment purposes. B. As an alternative ground for the discovery of blood alcohol testing, Suzuki contends that Dubis waived her right to claim the physician-patient privilege. Under well-established case law, the privilege is not absolute, Brandt v. Medical
Defense Associates, 856 S.W.2d 667, 671 (Mo. banc 1993). It may be waived in a variety of ways, and the most common cases involve plaintiffs who voluntarily place their medical condition in issue by filing a petition alleging that they suffered physical or mental injuries. State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 409 (Mo. banc 1996). A party may also "impliedly waive the privilege through an act showing a clear, unequivocal purpose to divulge the confidential information." Cline v. William H. Friedman & Associates, Inc., 882 S.W.2d 754, 761 (Mo. App. 1994); State ex rel. Gonzenbach v. Eberwein, 655 S.W.2d 794, 796 (Mo. App. 1983). If the privilege is waived, the opposing party may discover the medical records that reasonably relate to the physical conditions at issue. State ex rel. Wilfong, 933 S.W.2d at 409. Suzuki has not demonstrated that Dubis waived her statutory privilege under any recognized theory. She was a defendant who was sued first by Rodriguez and then by Suzuki in a cross-claim, and she brought no action for any injuries she suffered herself. Although in answer to Suzuki's cross-claim, she denied the allegation that she was intoxicated at the time of the accident, she did not plead any facts that created an issue about her medical condition. As explained in State ex rel. Hayter v. Griffin, 785 S.W.2d 590, 593 (Mo. App. 1990), a denial of an allegation cannot constitute a waiver of the physician-patient privilege because to do so would force the patient to choose between suffering judgment by default or waiving the physician-patient privilege. Forcing that choice would be illogical and unacceptable. Id. Under the pleadings, at least, Dubis did not place her medical condition in issue and thus, did not waive the privilege. Nevertheless, Suzuki claims that Dubis waived the privilege 1) when she testified in rebuttal to an offer of proof made by Suzuki (in the first trial) that when she left the winery, she did not feel lightheaded, nor was she slurring her speech or having difficulty walking, seeing or driving; 2) when she responded to questions concerning her intoxication that were posed by plaintiff's counsel on cross-examination; and 3) when her own lawyer elicited testimony from other witnesses on the intoxication issue. These claims have no merit. For the same reason that Dubis does not waive the privilege by filing an answer denying the allegations in Suzuki's cross-petition that she was intoxicated, she does not waive the privilege by introducing non-medical evidence at trial. See id. Furthermore, the responses to questions on cross-examination that required her to divulge information about her intoxication are considered "extorted" and, therefore, involuntary. Hemminghaus v. Ferguson, 215 S.W.2d 481 (Mo. 1948) overruled on other grounds by State ex rel. McNutt v. Keet, 432 S.W.2d 597, 602 (Mo. banc 1968); State ex rel. Hayter v. Griffin, 785 S.W.2d 590, 594 (Mo. App. 1990). Consequently, Dubis did not waive the physician-patient privilege by testifying in the above respects. Finally, Suzuki argues that Dubis waived her statutory privilege because, in closing arguments, her lawyer tried to persuade the jury that Suzuki was the party responsible for the absence of concrete evidence of Dubis' alleged
intoxication. This argument is not supported by the record and warrants no further consideration. C. Despite the clear wording of the statutory privilege, Suzuki and three groups as amici curiae, Mothers Against Drunk Driving, SADD, Inc., and American Automobile Manufacturers Association, urge this Court to allow the discovery and admission of blood alcohol evidence in all motor vehicle accident cases as a matter of policy. These parties are correct in their assertion that the privilege is always invoked at the expense of truth-seeking, and that the equities supporting the privilege are not as great in cases, as here, where a potentially culpable codefendant aligns herself with the plaintiff in order to establish that a perceived "deep-pocket" defendant was more culpable. The fact remains, however, that the privilege is set by statute, and any change to the scope of the privilege is solely a legislative prerogative. On the record in this case, the trial court committed no error in upholding the physician-patient privilege in favor of Dubis. V. Suzuki and amicus curiae, Association of International Automobile Manufacturers, Inc., argue that this Court should adopt the reasonable alternative design/risk-utility test of the Restatement (Third) of Torts as the substantive law of Missouri. Last year, this Court addressed the "risk-utility" issue in Newman v. Ford Motor Co., 975 S.W.2d 147, 152-54 (Mo. banc 1998), which was handed down while this appeal was being briefed. In both Newman and the case at hand, counsel for defendant sought to modify the verdict director for a strict liability/defective design case, MAI 5th 25.04, so that it incorporated the so-called "risk-utility" test. Under that test, a product is defectively designed "when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller . . . , and the omission of the alternative design renders the product not reasonably safe . . . ." Restatement (Third) of Torts: Products Liability, sec. 2(b). As this Court noted in Newman, the risk-utility test requires a plaintiff to prove that: "(1) a reasonable, safer, alternative design was available at the time of sale; and (2) omission of the safer alternative rendered the product 'not reasonably safe.'" Newman, 975 S.W.2d at 152-53. In contrast, a submission under the now-abandoned test of the Restatement (Second) required a finding that the product in question ". . . was in a defective condition unreasonably dangerous to the user or consumer . . ." Restatement (Second) of Torts, section 402A. MAI-5th 25.04 tracks section 402A by requiring that the product was "in a defective condition unreasonably dangerous" and adds the clause "when put to a reasonably anticipated use . . . ", which is derived from comment h to section 402A. A glaring weakness of the section 402A approach, according to Ford in the Newman case, and now Suzuki, is that liability can be predicated solely on the basis of "consumer expectations," a determination
that the product was "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it. . . ." Restatement (Second) of Torts, sec. 402A, cmt. i. This "consumer expectations" test, however, along with the "risk-utility" test, were expressly disavowed in Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 377-78 (Mo. banc 1986), with the explanation that the term "unreasonably dangerous," as used in section 402A and MAI 5th 25.04, needs no judicial definition, whether derived from consumer expectations, risk-utility, or otherwise. Id. at 378. Instead, the concept of "unreasonable danger" is to be treated as an ultimate issue for the jury. Id. Under this Court's reasoning, "[a] signal virtue of such a general instruction is that it allows the jury to give the concept of unreasonable danger content 'by applying their collective intelligence and experience to the broad evidentiary spectrum of facts and circumstances presented by the parties. . . .'" Newman, 975 S.W.2d at 154 (citing Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d at 378). Furthermore, the perceived need to define "unreasonable dangerousness" is largely satisfied by allowing the litigants "to argue that the utility of a design outweighs its risks, or that consumer expectations were violated, or any other theory of unreasonable dangerousness supported by the evidence. . . ." Newman at 154. In addition to the force of precedent that Nesselrode and Newman rejected the risk-utility approach, any further consideration of risk-utility was effectively foreclosed by the enactment of section 537.760, RSMo 1994, as part of Missouri's 1987 tort reform act, which, inter alia, codified section 402A of the Restatement (Second) of Torts. The verdict director for design defect cases, MAI 5th 25.04, properly tracks section 537.760, which, in turn, tracks the Restatement (Second). As noted, however, the elements of a cause of action for design defect under the Restatement (Third) are markedly different from those under the Restatement (Second). To submit a verdict director in which the reasonable alternative design/risk-utility elements from the Restatement (Third) are substituted for the "unreasonably dangerous" standard does not comport with the statutory elements of section 537.760. Like the statute on physician-patient privilege, any change must come from the legislature. To the extent that Suzuki's contention is merely that the reasonable alternative design/risk-utility concept should be worked into the existing verdict director under section 537.760 in order to define the terms "defect" and "unreasonably dangerous," it is also rejected. Section 537.760 was enacted approximately one year after the decision in Nesselrode and with full knowledge that this Court had disapproved of the use of external standards, and risk-utility in particular, to guide the jury's determination of whether a defect is unreasonably dangerous. See Nicolai v. City of St. Louis, 762 S.W.2d 423, 426 (Mo. banc 1988) ("In construing a statute, the Court must presume the legislature was aware of the state of the law at the time of its enactment."). By codifying section 402A from the Restatement (Second), unadorned by any
definitions, the legislature tacitly adopted the Nesselrode approach, and now, to judicially define the terms "defect" and "unreasonably dangerous" appears to be inconsistent with legislative intent. This Court again declines the invitation to adopt the reasonable alternative design/risk-utility theory. VI. Because of the holding in parts II and III of this opinion, the judgment of the trial court is reversed, and the case is remanded for a new trial.
Footnotes: FN1.The dissent's criticism regarding Suzuki's jurisdictional statement misconstrues the record. Suzuki begins its brief with a combined introduction to the case and jurisdictional statement, with a heading that labels it as such: "Introduction and Jurisdictional Statement." Although "introductions" are not specifically provided for in this Court's rules, they are not prohibited and are sometimes helpful, and many parties on appeal include them. In fact, the dissent overlooks that plaintiff Rodriguez also included in her brief an "Introduction and Summary of Argument." FN2.The dissent's suggestion that section 490.220 is nothing more than an authentication statute -- a point plaintiff declined to raise -- is contrary to many cases holding that that section also authorizes the admission of hearsay documents. Cases from recent years, in addition to Hadlock, include State v. McMillin, 783 S.W.2d 82, 95 (Mo. banc 1990); Hefele v. National Super Markets, Inc., 748 S.W.2d 800, 803 (Mo. App. 1988); United States v. Estate of Weideman, 708 S.W.2d 735, 737 (Mo. App. 1986); and Kastner v. Beech Aircraft Corp., 650 S.W.2d 312, 318-19 (Mo. App. 1983). FN3.The Federal Register is published by the Office of the Federal Register, National Archives and Records Administration under the Federal Register Act, 44 U.S.C. secs. 1501 et seq. (1994). FN4.The NHTSA, when presented with a defect petition, is required by statute and regulation to conduct a technical review of the petition. 49 C.F.R. sec. 552.6 (1997). Once it decides not to grant a recall petition, NHTSA is required to issue a notice of denial, published in the Federal Register, within 45 days, setting forth its reasons. 49 C.F.R. sec. 552.10 (1997). FN5."The original and two duplicate originals or certified copies of a document required or authorized to be published by section 1505 of this title shall be filed with the office of the Federal Register . . .". 44 U.S.C. sec. 1503 (1994). FN6.Current editions of C.J.S. omit the discussion on opinions and conclusions, and the entire subject of the public records exception is reconfigured in 32A C.J.S. sec. 834 et seq. FN7.The plaintiff's and trial court's characterization of the NHTSA's no recall decision as a "fact" appears to be a strained effort to distinguish between "facts" that might be admissible under the common law official records exception, and opinions and conclusions that purportedly are not. The necessary implication from the "fact" that no recall was ordered was that the NHTSA had ultimately opined and concluded that the Samurai was not defective. Thus, by calling the no recall decision a "fact," the trial court allowed into evidence the same kind of substantive evidence it excluded as opinions and conclusions. The Supreme Court in Rainey made the same point in explaining that "factual findings," as that term is used in Rule 8.03(8)(c), the federal government records exception, necessarily include opinions and conclusions. Beech Aircraft v. Rainey, 488 U.S. at 169. In any event, if the trial court had been correct that the opinions and conclusions in the NHTSA reports were inadmissible, then surely the ultimate opinion and conclusion that no recall should be ordered should have been inadmissible as well. FN8.Suzuki apparently did not seek the admission of the 1996 and 1997 reports under this argument, presumably because production of the Samurai was discontinued before issuance of those reports, and their relevance would have been marginal.
FN9.Although an officer has the authority under section 577.020, RSMo 1994, to order a blood alcohol test to be taken, that authority arises only when the person to be tested has been placed under arrest. However, under section 577.039, RSMo 1994, an officer is not entitled to make a warrantless arrest in a DWI case if more than one and one-half hours have elapsed from the time the claimed violation occurred. In this case, the officer was concerned that too much time had elapsed between the time of the accident and his arrival at the emergency room; therefore, he did not arrest Dubis or have her blood alcohol level taken. Nor did he later attempt to obtain a warrant for her arrest. Separate Opinion: