Terence Marks, Respondent, v. City of St. Louis, Appellant.

TERENCE MARKS, Respondent, v. CITY OF ST. LOUIS, Appellant. ) ) ) ) ) ) ) ) ) ED113479

Appeal from the Circuit Court of the City of St. Louis The Honorable Theresa C. Burke, Judge I NTRODUCTION

The City of St. Louis (City) appeals from the trial court's judgment entered upon a jury verdict in favor of Terence Marks (Marks). We affirm. B ACKGROUND On February 14, 2023, Marks was involved in a motor vehicle accident with a City garbage truck. Marks filed a petition against the City alleging negligence. In December 2024, a jury returned a verdict in favor of Marks in the amount of $288,000 but assessed ten percent fault to him and ninety percent to the City. The trial court entered judgment

2 on the jury's verdict, awarding Marks $252,000, reduced by his percentage of fault. The City filed a motion for new trial, which was denied. This appeal follows. D ISCUSSION The City brings four points on appeal asserting the trial court erred in admitting the causation testimony of Nathan Mall, M.D. (Dr. Mall); permitting an improper statement during closing argument; denying its motion for mistrial; and finally in refusing to submit a requested jury instruction. 1

Point One – Causation Testimony In its first point on appeal the City argues the trial court erred in admitting the causation testimony of Dr. Mall, one of Marks' treating physicians, attributing his right knee symptoms to the collision. The City alleges the testimony was not based on sufficiently reliable facts and data and was not based upon a reliable application of relevant methods to such facts. Specifically, the City claims Dr. Mall did not know Marks had a pre-existing, symptomatic condition in his right knee prior to the accident, he did not know when the symptoms arose, he did not know Marks was working at the time his symptoms were observed, and he did not conduct any analysis of the cause of the symptoms, instead relying solely on Marks' attribution of the symptoms to the collision.

1 In response, Marks argues the City's brief violates Missouri Supreme Court Rule 84.04 (2024) and should be dismissed. We may review non-compliant briefs ex gratia where the arguments are readily discernible, and we exercise that discretion here. Auman v. Richard, 672 S.W.3d 277, 281 (Mo. App. W.D. 2023) (internal citation omitted).

3 Standard of Review The trial court's decision to admit expert testimony is reviewed for abuse of discretion. Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752, 760 (Mo. banc 2010) (citing Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 129-130 (Mo. banc 2007)). The court abuses its discretion if we find the ruling is so clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. Analysis Section 490.065 RSMo (Supp. 2017) governs the admissibility of expert testimony. 2 Pursuant to the statute, the trial court is required to determine whether (1) the expert is qualified; (2) the testimony will assist the finder of fact; (3) the testimony is based upon facts or data reasonably relied on by experts in the field; and (4) the facts or data upon which the expert relies are otherwise reasonably reliable. Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299, 310-11 (Mo. banc 2011); Section 490.065. While generally a treating physician is not retained solely for the purpose of litigation, he or she may function as an expert to the extent one or both parties ask the witness to opine on information obtained during the care and treatment of the plaintiff and medical knowledge generally known in the treating physician's area of specialty. Ralls v. Soo Line R.R., 710 S.W.3d 606, 611 (Mo. App. W.D. 2025) (internal citation omitted).

2 All further statutory references are to RSMo (Supp. 2017).

4 We agree medical opinions based on assumptions not supported in the record should not be admitted; however, here Dr. Mall's testimony was based upon significant evidence and was consistent with Marks' own testimony at trial. Dr. Mall saw Marks several days after the accident. He took a history from Marks, conducted imaging tests, did a physical examination, and ordered additional treatment. Dr. Mall acknowledged the presence of "fairly significant arthritis" in Marks' right knee upon his initial review of an x-ray, but also testified it is possible for a patient with arthritis to have no pain. Marks told Dr. Mall he did not have pain or other problems with his knee until after the crash, consistent with his testimony at trial. Marks testified he suffered a torn meniscus in his right knee in 2005 and had surgery to repair it. Following his recovery from surgery until the accident, he suffered occasional minor pain in his knee but had not obtained any medical treatment for it since the 2005 surgery and recovery. As a result, the City's argument that Dr. Mall's opinion was improperly based on unsupported assumptions or inaccurate reporting from Marks is insufficient to render the testimony inadmissible. Instead, any question relating to the basis for his opinion or the credibility of Marks' assertion that he did not suffer any pain prior to the accident is relevant only to the weight given to Dr. Mall's opinion rather than its admissibility and should be left for the jury to decide. Ingham v. Johnson & Johnson, 608 S.W.3d 663, 708 (Mo. App. E.D. 2020) (internal quotations omitted). Thus, we do not find any abuse of discretion in the admission of Dr. Mall's testimony. Point one is denied.

5 Point Two – Closing Argument In its second point, the City contends the trial court erred in overruling its objection to counsel's statement during closing argument that if the jury found Marks was not speeding, they must assess one hundred percent fault to the City and zero to Marks. The City argues this misstated the law and impermissibly shifted the burden of proof by assuming the City's failure to prove comparative fault necessarily established the City's liability. Standard of Review The trial court has wide discretion in presiding over closing arguments. Ingham, 608 S.W.3d at 686 (internal quotations omitted). Thus, we review the court's decision to overrule an objection to closing argument for abuse of discretion. Id. at 685 (citing Minze v. Mo. Dep't of Pub. Safety, 541 S.W.3d 575, 581 (Mo. App. W.D. 2017). In addition, Rule 84.13(b) 3 requires the alleged error to "materially affect[] the merits of the action," to warrant reversal. Denney v. Syberg's Westport, Inc., 665 S.W.3d 348, 361 (Mo. App. E.D. 2023). "The burden is on the appellant to prove the trial court abused its discretion and prejudice resulted." Id. (quoting Ingham, 608 S.W.3d at 699)). Analysis During closing argument, counsel for Marks stated: Now, the verdict form in this case, the verdict form in this case [sic] will give directions for completion. 'On the claim of Plaintiff, Terence Marks, for personal injury,' says, 'We, the undersigned jurors assess the percentage of fault as follows.'

3 All references to Rules are to Missouri Supreme Court Rules (2024).

6 On that we talked about failure to keep a careful lookout. We talked about failure to yield. I don't think Terence was speeding. All of the records right after the crash indicate Terence wasn't speeding.

And if you believe, like I believe, that Terence wasn't speeding then you must return a verdict of a hundred percent fault to the City, zero percent fault to the [sic] Terence for a total of a hundred percent.

While misstatements of law are impermissible during closing argument, in ruling on the propriety of an argument the comment must be evaluated in the context of the record as a whole rather than viewed in isolation. Ingham, 608 S.W.3d at 686 (internal quotations omitted). Here, in prior closing argument, counsel extensively discussed Instruction No. 9, the verdict director for finding liability against the City. This instruction required the jury to find the actions of the driver of the City truck were negligent and such negligence caused Marks' injuries. Only later did counsel discuss the verdict form where the jury was to assess percentages of fault. It is clear from the context of closing argument as a whole that counsel's argument was not a misstatement of law, but instead a follow-up to his initial discussion of the City's liability. Moreover, the jury was properly instructed regarding both the City and Marks' potential liability and negligence and assessed a percentage of fault to Marks. We presume the jury followed those instructions. See K.B. v. Oasis Foot Spa and Massage, LLC, 703 S.W.3d 606, 617 (Mo. App. E.D. 2024) (internal citation omitted). Thus, even though we do not believe the court abused its discretion, if we were to find the trial court erroneously overruled the City's objection, there is no prejudice demonstrated on the record before us. Point two is denied.

7 Point Three – Request for Mistrial In point three on appeal, the City claims the trial court erred in denying the City's request for a mistrial following counsel's improper and prejudicial statements during closing argument. The City argues counsel mentioned the timing of the parties' stipulation regarding Marks' neck and back injuries, which was a subject not in evidence. The City argues counsel made the statements solely for the purpose of prejudicing the City and unfairly impugned its conduct during the litigation in a way that could not be unheard. Standard of Review The decision to grant or deny a mistrial is "largely within the discretion of the trial court." Wilkinson v. Stanley Fastening Sys., L.P., 693 S.W.3d 166, 170 (Mo. App. E.D. 2024) (quoting Sherrer v. Boston Sci. Corp., 609 S.W.3d 697, 716 (Mo. banc 2020)). We review the court's decision for an abuse of discretion, which occurs in the context of mistrial when the movant demonstrates a "grievous error" which cannot be cured by any other sanction. Id. The court abuses its discretion if the decision is clearly against the logic of the circumstances then before it, or is arbitrary and unreasonable, indicating a lack of careful consideration. Id. Marks argues the City did not properly preserve this claim for review because its request for mistrial was not made at the time of the objection. While we typically agree the motion may be waived by continuing with the proceedings before a determination of the motion, the movant must also proceed in a manner inconsistent with the object of the motion. See Vermillion v. Burlington N. R.R. Co., 813 S.W.2d 947, 949-950 (Mo. App.

8 E.D. 1991). Here, although the City did not immediately request a mistrial at the time of the allegedly improper argument, it did so almost immediately after the court submitted the case to the jury. Under those circumstances, the City did not act in a manner inconsistent with the request. Analysis During closing argument, counsel for Marks stated: And the City wants to come in and say we're being reasonable, we're not disputing his neck and back was hurt. Yes you were for two years. You disputed it until Sunday night when we had experts coming in live to testify about - -

The City objected to this argument as "not in evidence." The court sustained the objection and ordered it stricken from the record, acknowledging it was improper. After the case was submitted to the jury for deliberation, counsel for the City made a motion for mistrial based upon the improper argument which the trial court denied. The City relies on Wilkinson for the proposition a mistrial is appropriate if a party introduces improper subjects to the jury when the court cannot "unring the bell." 693 S.W.3d at 172. However, this court also stated a mistrial should be declared "where it appears impossible for the jury to deliberate dispassionately on the merits of a cause or defense as a result of the action of counsel in charging the atmosphere of the trial with prejudice." Id. (internal quotation omitted). The record here does not show such prejudice. Instead, the jury was informed the parties had entered into a stipulation regarding the City's liability and damages for the injuries to Marks' neck and back. The court read the stipulation which relieved Marks of his burden of proving the injuries or

9 related damages. Assuming without deciding the reference to the timing of the City's stipulation was improper, this limited comment about a subject that was introduced into evidence was not so prejudicial as to warrant the extreme remedy of a mistrial. The trial court did not abuse its discretion. Point three is denied. Point Four – Jury Instruction In its fourth and final point, the City argues the trial court erred in refusing its suggested instruction on Marks' failure to mitigate damages because the evidence supported such an instruction. Specifically, the City contends Marks did not take any steps to avoid activity causing his right knee symptoms. Standard of Review The question of whether a jury is properly instructed is a question of law we review de novo. Klotz, 311 S.W.3d at 766 (internal citations omitted). We review the trial court's decision in the light most favorable to submission of the requested instruction, and if it is supportable by any theory, submission is proper. Id. We will reverse only where the instructional error resulted in prejudice that materially affected the merits of the action. Id. To preserve a claim for instructional error, a specific objection must be made "stating distinctly the matter objected to and the grounds of the objection." Wynn v. BNSF Ry. Co., 588 S.W.3d 907, 912 (Mo. App. W.D. 2019) (internal quotations omitted). Here, the only discussion regarding the proposed instruction was the City's statement that "there was a separate instruction for the failure to mitigate," and the court stated it would be marked as rejected by the court. Although the City did raise specific grounds in

10 support of the submission of the instruction in its motion for new trial, this is not sufficient to preserve instructional error on appeal because during the actual trial, the City did not raise any argument for its submission upon the court's rejection of the instruction. Thus, we may review the claim for plain error, which in a civil case is only appropriate where there is a miscarriage of justice so egregious as to "weaken the very foundation of the process and seriously undermine confidence in the outcome of the case." Id. Analysis In its motion for new trial and the brief, the City argues the trial court erroneously based the rejection of the instruction by relying solely upon whether there was evidence of Marks' failure to comply with a physician's instruction. According to the City, there was other evidence to support the submission of an instruction for failure to mitigate damages. Specifically, the City's proposed instruction stated he failed to avoid activities that cause or worsened his symptoms, to give his body a chance to recover from his acute injuries, or to pursue alternative treatment options. However, the evidence at trial showed Marks suffered consistent pain which began when the accident occurred. He sought treatment and initially underwent physical therapy and injections prior to surgery. There was no evidence in the record to show he did anything to worsen his injury, he failed to give his knee the chance to recover, or that he failed to pursue other treatment options. As a result, the trial court did not err, plainly or otherwise, in refusing the proposed instruction on failure to mitigate damages. Point four is denied.

11 C ONCLUSION The trial court's judgment is affirmed.

________ _______________________ Lisa P. Page, Judge

Robert M. Clayton III, Presiding Judge and Michael E. Gardner, Judge concur.