Gail & Darrell Mansfield v. Caleb Horner & John Horner

In the
I
Mis
ssouri Court of Appea
C f als
Weste Dist
ern trict
GAIL AND DARR
A RELL MAN
NSFIELD,
, )
)
Resp
pondents, ) D76310
WD
)
v. ) OPI
INION FIL
LED: June 17, 2014
e
)
CALEB HORNER AND JOH
B R HN )
HORNE
ER, )
)
App
pellants. )
Appea from the Circuit Court of Jac
al e ckson Coun Missou
nty, uri
The Honorable Marco A. R
H M Roldan, Judg
ge
Before Division Three: Mar D. Pfeiffe Presidin Judge, Th
e T rk fer, ng homas H. N
Newton, Jud
dge
and Cynthi L. Martin Judge
ia n,
Caleb Horner ("Caleb" and John Horner (
C ") n ("John") (c
collectively "the Horn
ners")
appeal from the tria court's ju
f al udgment ("J
Judgment") in a wrong death a
) gful action awar
rding
$8,650,0 of com
000 mpensatory damages and $100,0
a 000,000 in damages for aggravating
tances to Gail Mansfie ("Gail") and Darre ("Darrel Mansfie (collectively
circumst G eld ) ell ll") eld
nsfields").1 The Horners present nine points on appeal, each of w
"the Man s which argues that
s
gment constituted erro in that: (1) the Man
the Judg or ( nsfields fail to mak a submis
led ke ssible
1
Because Caleb Horner and Jo Horner sha the same sur
B ohn are urname, we refe to each by th first name for
er heir
purposes of clarity. The same is true fo Gail Mansfie and Darrell Mansfield. N familiarity o disrespect is
o or eld l No or
intended with respect to any of the parti
w a ies.
case on the duty and causation elements of their claim for wrongful death based on
negligence; (2) the jury's verdict awarding $108,650,000 to the Mansfields was not
supported by substantial evidence; (3) the jury's verdict awarding $108,650,000 to the
Mansfields violated the Horners' constitutional right to due process; (4) the Mansfields'
lawsuit against the Horners violated the Horners' constitutional right to religious freedom
in that the lawsuit required the jury to address the merits of the Horners' religious beliefs;
(5) Wendi Nield should have been allowed to testify; (6) Karen Tadych's testimony
should have been excluded as irrelevant; (7) certain pieces of evidence should not have
been excluded from trial for the Horners' failure to follow discovery rules; (8) the
Mansfields' counsel intentionally inflamed the prejudices of the jury and misstated the
law and the evidence during closing arguments; and (9) the Horners' motion for remittitur
should have been granted because Missouri's statutory cap on punitive damages applies
to limit the damages recoverable for aggravating circumstances in cases involving
wrongful death. We affirm.
Factual and Procedural Background2
Misty Mansfield3 ("Misty"4) worked as a dispatcher for the Lee's Summit Police
Department from 2001 to 2006. Caleb worked as a police officer for the Lee's Summit
2
We view the facts in the light most favorable to the jury's verdict. Mengwasser v. Anthony Kempker
Trucking, Inc., 312 S.W.3d 368, 370 n.1 (Mo. App. W.D. 2010).
3
There is a dispute between the parties as to Misty's last name at the time of her death. The dispute arises
from the parties' disagreement as to whether the marriage between Misty and Caleb was valid. See infra note 5.
Because the trial court referred to her as "Misty Mansfield" throughout its Judgment, we have elected to use that
name.
4
Because Misty Mansfield shares a last name with her parents, Gail and Darrell Mansfield, we refer to
Misty by her first name for purposes of clarity. No familiarity or disrespect is intended.
2
Police Department during the same time period. Caleb and Misty began seeing one
another romantically and eventually married in 2004.5
Caleb participated in a religious group led by John. According to the teachings of
this group, a wife was to be submissive to her husband, which required the wife to relent
to the husband's decisions. In addition, the group practiced "faith healing" rather than
pursuing modern medical care. Though Misty had not participated in Caleb's religious
group before she and Caleb started dating, she was generally aware of the group's
teachings before she married Caleb.
Prior to their marriage, Caleb and Misty agreed that any children would be
delivered at home without professional medical intervention. Misty discovered that she
was pregnant in March 2006. While she was pregnant, Misty attended a course that
taught the Bradley Method, a series of natural childbirth techniques. Misty went into
labor on December 2, 2006, and she, along with Caleb, followed through with their plan
for a home birth.
Misty went into labor on December 2, 2006, but did not deliver her baby until
December 8, 2006. Throughout labor, Misty's "birth team" was present: Caleb, Amber
Leathers ("Leathers"), Wendi Nield ("Nield"), and Tina Moore ("Moore"). Leathers and
Nield are Caleb's sisters. The Horners represented to Misty that Leathers and Nield were
midwives. Moore was Misty's best friend.
5
The parties dispute whether Misty and Caleb were "married." According to the testimony at trial, Caleb
and Misty participated in a marriage ceremony but never obtained a license from the State of Missouri. The validity
of Caleb and Misty's purported marriage is not relevant to this appeal.
3
At some point during her labor, Misty contacted Amber Walla ("Walla"), a doula,6
and asked Walla to come to the house. Upon learning how long Misty had been in labor
and that the delivery was an "unassisted home birth," Walla was reluctant to go to the
house. Walla eventually agreed to do so "as a friend" and made it clear to Misty and her
birth team that she was not there "as a professional in any aspect."
Walla observed the shape of Misty's abdomen and noticed that it was "unusually
shaped, like a big ball up under her ribs." Walla also performed a pelvic exam, during
which she observed vaginal swelling and discovered what appeared to be meconium on
her finger. Based on that information, Walla told Caleb, Leathers, and Nield that she
believed the baby was in the breech position and that the situation was dangerous.
Leathers and Nield argued that it was impossible for the baby to be in the breech position
due to the "unity" between Caleb and Misty. According to their beliefs, "if the baby's
husband and wife are in unity together, the baby will be head down."
During Walla's visit, Misty agreed to go to the hospital. Misty stood up from the
bed and was in the process of putting on her clothes so that she could leave. At that
point, Caleb asked Walla to leave the room so that he and Misty could pray together.
Soon thereafter, Caleb emerged from the bedroom and told Walla that he and Misty had
changed their minds. Caleb said, "[Walla], we're not ready to give up on this yet. We're
just -- we think it's early labor and, um, you know, my sister has said that she's had labors
like this before and they've had meconium like that before and, you know, we think
6
A doula is a "person, usually a woman, who is professionally trained to assist a woman during childbirth
and who may provide support to the family after the baby is born." NEW OXFORD AMERICAN DICTIONARY 507 (2d
ed. 2005).
4
everything's going to be fine. We're just not ready to go to the hospital." Caleb admitted
that in his private conversation with Misty, he said, "Honestly, they're probably going to
cut you open and take your baby."
On December 8, 2006, the baby began to descend. The baby was in fact breech.
The baby progressed through the birth canal posterior first and folded in half. When the
baby became stuck, Misty's birth team began reading books to figure out what to do. The
books indicated that an episiotomy was necessary to complete the delivery. Caleb then
cut Misty's vagina with a pair of unsterilized household scissors. The baby, a girl named
Sydney Horner ("Sydney"7), was delivered stillborn on December 8, 2006. Sydney's
cause of death was determined to be intrapartum asphyxia associated with a breech
delivery.
The birth team did not call 911 immediately following Sydney's stillbirth. Instead
they called John, a self-professed faith healer. John had not been present during Misty's
labor or child birth. John came to the house and prayed over Sydney for hours in an
attempt to raise her from the dead. Meanwhile, Misty's vaginal cuts were not sutured,
dressed, or treated in any way.
The Lee's Summit Fire Department responded to the home after receiving a call
regarding a stillbirth approximately nine hours earlier during a home delivery attempt.
The purpose of the visit was to provide medical care to Misty. Caleb answered the door
and spoke to Captain Timothy Schurder ("Schurder"). Caleb informed Schurder that the
7
Because Sydney Horner shares a last name with her father, Caleb Horner, and her uncle, John Horner, we
refer to Sydney by her first name for purposes of clarity. No familiarity or disrespect is intended.
5
couple's religious beliefs prevented another man from examining his wife's vagina. Caleb
also said that he would call for medical help for Misty if she needed it. Caleb did not
inform Schurder that he had performed an episiotomy on Misty and that those cuts
remained untreated.
Following Sydney's stillbirth, Misty remained at her home with Caleb and
members of his family, including John, Leathers, and Nield. The Mansfields visited
Misty in the two weeks immediately following Sydney's stillbirth. They were never
allowed to be alone with Misty. During that time, the Mansfields observed that Misty's
condition was deteriorating. Approximately two weeks after Sydney's stillbirth, Caleb
kicked the Mansfields out of the home. Gail was able to speak with Misty on the
telephone thereafter. Caleb did allow the Mansfields to return to the home shortly before
Misty's death.
On January 5, 2007, Misty called Dr. James Green ("Dr. Green"), a chiropractor
she had previously visited, regarding her medical problems. The note Dr. Green wrote at
the time of the telephone conversation with Misty stated:
Misty answered the phone and in an extremely labored breathing and voice
said she had had a baby breech and stillborn and had been having problems
since, and now has severe pain in her tailbone and pelvis and has been
unable to walk for at least five days. I asked her when she had the baby,
and she asked someone that was with her because she couldn't remember.
Misty said the 27th. With her labored voice and tone, I wasn't sure if she
meant the baby was delivered the 27th or she hadn't been able to walk since
the 27th. I asked if she had been back to her doctor since the delivery, and
she said she had not and had not sought any care and does not have a
regular medical doctor. I told her that her symptoms sounded like they
were outside the scope of my practice and she should go to the emergency
room. She stated they really did not want to do that. I told her again that I
did not think it was a problem I could help her with and she should go to
6
the ER or, if she was unable to walk, then [call] 911. She said thanks for
calling her back and they would decide what to do and then hung up.
(Emphasis added.)
Misty passed away on January 9, 2007. The Jackson County medical examiner
performed an autopsy and determined that the cause of Misty's death was a severe
infection that spread throughout her body and organs. The medical examiner noted that
Misty's episiotomy was never treated, and as a result, Misty developed sepsis. In a
hospital, the wound would have been sutured and treated with antibiotics. Thus,
according to the Jackson County medical examiner, Misty would have survived had she
received appropriate medical treatment.
The Mansfields filed a wrongful death suit against Caleb, John, Nield, and
Leathers.8 The petition alleged that the defendants were negligent in Misty's home birth
and in the care of Misty following Sydney's stillbirth. In particular, the petition claimed
that Caleb, Nield, and Leathers were members of a "cult-like group" led by John. One of
the tenets of the group was to reject modern medicine in favor of faith healing. The
Mansfields alleged that "[u]pon discovering Misty Mansfield's pregnancy Defendant C.
Horner and Defendant J. Horner forbade Misty from receiving prenatal care and
instructed her that the birth would be at home, and that Defendants C. Horner, J. Horner,
Nield, and Leathers were fully prepared to safely deliver the child." The Mansfields
alleged that Caleb "assumed control over [the] home birth" and that John "advis[ed]
8
The Mansfields also named Carol Balizet, Home in Zion Ministries, The Key Publications, The Key
Ministries, John G. Lake Ministries, No Greater Joy Ministries, John Doe Individual, and John Doe Religious
Organization as defendants in the wrongful death suit. The claims against those defendants were dismissed without
prejudice prior to trial.
7
members of The Cult on home birth." The Mansfields claimed that, during the home
birth and after Sydney's stillbirth, Caleb, John, Nield, and Leathers provided Misty with
"horribly inadequate care" that ultimately resulted in Misty's death.
Nield entered into a settlement agreement with the Mansfields prior to trial, and
the Mansfields dismissed their claim against her. A jury trial was held on the Mansfields'
remaining claims against Caleb, John, and Leathers in December 2012. The Mansfields
were represented by counsel, but the Horners and Leathers represented themselves pro se
throughout the trial.
The Mansfields theorized that the Horners and Leathers "brainwashed" Misty into
refusing medical care, that they told Misty she was going to "be okay" when they knew
otherwise, that they refused medical treatment for Misty, and that they refused Misty
access to anyone who believed differently than them.
The Mansfields called Karen Tadych ("Tadych"), John's ex-wife,9 as a witness.
Tadych testified as to the indoctrination of Misty into the religious group led by John. In
particular, Tadych testified about her participation with John in pre-marital counseling for
Caleb and Misty. During the pre-marital counseling, John and Tadych taught Misty
about the role of a woman in a marriage. John and Tadych instructed Misty that,
according to their beliefs, a wife should be wholly submissive to the husband so that if
they disagree, the man makes the ultimate decision. According to Tadych, members of
the religious group led by John believed that wives have no right to tell their husbands
9
Like Caleb and Misty, John and Tadych participated in a marriage ceremony but never obtained a
marriage license from the State of Missouri.
8
what they will or will not do. Instead, the wife and children must submit to the authority
of the husband in order to honor and respect him. Further, John and Tadych instructed
Misty regarding the rejection of modern medicine in favor of faith healing. Essentially,
John and Tadych taught Misty to rely solely on God for healing.
In addition, Tadych testified that isolation was part of the indoctrination process
into the religious group led by John. All new members of the religious group
experienced isolation from persons who did not believe as the group did. If a relationship
did not include a "healthy spiritual tie," then that relationship was broken. Eventually,
members of the religious group led by John would have no relationships outside of those
with other members of the group.
Tadych also testified as to John's religious beliefs. Tadych testified that John
believes he can talk to God and that God sends him visions in which God tells John that
medicine is evil. Further, according to Tadych's testimony, John believes that he has a
healing power that includes the ability to raise people from the dead. Tadych finally
testified that John has a "messianic complex" so that he believes he, like Jesus, "walks in
no known sin."
Finally, Tadych testified as to John's prior involvement in other deaths in which
medical treatment was avoided based on religious beliefs. During Tadych's marriage to
John, he was involved in four home births that resulted in the death of the infants, and the
death of one child and one adult who both suffered from a treatable illness or disease.
Every death was the result of medical treatment being rejected in favor of faith healing,
including John's purported healing power.
9
In addition to Tadych's testimony, the Mansfields presented Gail's testimony to
corroborate their theory that Misty was brainwashed by Caleb, John, and Leathers. Gail
testified that prior to Misty's marriage to Caleb, Misty was "very pigheaded, very
headstrong, and very opinionated." After her marriage, though, Misty slowly changed
into being wholly submissive to Caleb. As an example, Gail testified that when Misty
married Caleb, she abandoned her dream of being a police officer in favor of being a
stay-at-home mother in accordance with Caleb's wishes. Further, Gail testified about
how Caleb isolated Misty from her family and friends after their marriage: "Caleb didn't
really want Misty to be around people that [sic] didn't think like he thought. . . . He tried
to isolate her from both of the brothers, from Darrell and I [sic], from some of her friends,
and he definitely wanted to get rid of me. He didn't want me in the picture at all because
I didn't believe like that."
Gail also testified as to Caleb's behavior during Misty's pregnancy and following
the stillbirth of Sydney. When Misty attempted to have a sonogram, she called Caleb to
tell him she was at a doctor's office. Caleb forbade Misty from obtaining the sonogram,
so Misty left the doctor's office immediately. Further, Caleb forbade Gail from attending
the home birth because "[h]e did not want anyone there that [sic] would call the police if
anything went wrong." Finally, Gail testified that Misty was isolated after Sydney's
stillbirth so that someone from the Horner family was always in the room whenever Gail
and Darrell visited Misty.
The Mansfields also presented evidence of their damages at trial. Dr. John Ward
("Dr. Ward"), a forensic economist, testified as to the economic damages that resulted
10
from Misty's death. According to Dr. Ward, economic damages are "those [damages]
that can be measured in the marketplace in some fashion." Economic damages include
the decedent's earning capacity and services that the decedent performed. Dr. Ward
calculated that the present value of the economic damages resulting from Misty's death
totaled $645,020. Dr. Ward did not offer an opinion as to non-economic damages, which
would include "pain and suffering, bereavement, [and] loss of enjoyment of life" because
those damages cannot be measured by the marketplace.
Instead, Gail and Darrell testified as to the non-economic damages. Gail testified
that Misty was her "best friend," and both Gail and Darrell testified as to their loss of
companionship with Misty. Further, the medical examiner testified as to the pain Misty
suffered as a result of the tears and cuts to her genitalia, and the resulting infection and
sepsis.
At the close of the Mansfields' evidence, Caleb made an oral "motion to dismiss
based on plaintiffs' failure to provide sufficient evidence to prove their claims of
negligence." The trial court considered and overruled the motion. The Horners and
Leathers then presented evidence to the jury. Caleb, John, and Leathers all testified, but
pursuant to a pre-trial ruling, they were not allowed to introduce any other evidence
because of their failure to participate in discovery.
After two weeks of evidence and less than three hours of deliberation, the jury
delivered a unanimous verdict. The verdict found Caleb 45% at fault, John 35% at fault,
Leathers 20% at fault, and Misty 0% at fault. The jury further found the total amount of
compensatory damages to be $8,650,000. In addition, the jury found Caleb, John, and
11
Leathers each responsible for damages for aggravating circumstances in the amounts of
$40 million, $40 million, and $20 million respectively. The trial court entered its
Judgment in accordance with the jury's verdict.
Following a limited entry of appearance by counsel on behalf of Caleb and John,
the Horners filed two motions in the trial court: (1) a motion for judgment
notwithstanding the verdict ("JNOV") or, in the alternative, motion for a new trial; and
(2) a motion to open, amend, and correct the judgment. The motion for JNOV or, in the
alternative, motion for new trial listed several bases for relief, most of which are raised
on appeal. The Horners' motion to open, amend, and correct the judgment asserted that
the Horners were entitled to remittitur because section 510.26510 limits damages for
aggravating circumstances to five times the net amount of the judgment. The trial court
overruled both motions.
The Horners appeal,11 setting forth nine claims of error.
Point One: Whether the Mansfields Made a Submissible Case of Negligence
The Horners' first point on appeal argues that the trial court erred in overruling
their motion for JNOV because the Mansfields failed to make a submissible case of
negligence. In particular, the Horners claim that the Mansfields failed to establish the
duty and causation elements because "Misty was an emancipated adult of sound mind,
with the duty to make her own decisions concerning medical treatment, she voluntarily
encountered the known risks associated with refusing medical treatment, and her
10
All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
11
Leathers is not a party to this appeal.
12
decisions constitute[d] the actual and proximate cause of her death." [Appellants' Brief p.
24.] The Mansfields claim that this point is unpreserved for appeal because the Horners
did not make a sufficiently specific motion for directed verdict following the close of the
Mansfields' evidence.
Before considering the merits of the Horners' first point on appeal, we must first
consider whether the issue is preserved for our review. Pope v. Pope, 179 S.W.3d 442,
450 (Mo. App. W.D. 2005).
"To preserve the question of submissibility for appellate review in a jury-
tried case, a motion for directed verdict must be filed at the close of all the
evidence and, in the event of an adverse verdict, an after-trial motion for a
new trial or to set aside a verdict must assign as error the trial court's failure
to have directed such a verdict. Failure to move for a directed verdict at the
close of all the evidence waives any contention that plaintiff failed to prove
a submissible case."
Id. at 451 (quoting Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 163 (Mo. App.
W.D. 1997)). Rule 72.01(a) provides: "A motion for a directed verdict shall state the
specific grounds therefor." (Emphasis added.) If the motion for a directed verdict is
insufficient, then a subsequent motion for JNOV is without basis and preserves nothing
for review. Pope, 179 S.W.3d at 451.
Here, Caleb made an oral motion at the close of the Mansfields' evidence. He
stated: "I would like to make a motion to dismiss based on plaintiffs' failure to provide
sufficient evidence to prove their claims of negligence."12 In Pope, we found that a
motion for directed verdict was insufficiently specific to preserve arguments for appeal.
Id. at 452. There, the motion argued, in part, that the plaintiff "failed to produce legally
12
Although Caleb did not denominate his motion correctly, we will treat it as a motion for a directed verdict
for the purpose of this appeal.
13
sufficient evidence that this Defendant violated any duty to Plaintiff" and that the plaintiff
"failed to produce any evidence which would establish that any act of this Defendant
caused or contributed to cause any damage allegedly sustained by Plaintiff." Id. Caleb's
oral "motion to dismiss" was less specific than that defendants' motion in Pope. Thus,
Caleb's oral "motion to dismiss" preserved nothing for appeal.
After the trial court denied Caleb's oral motion, the Horners elected to present
evidence. "By presenting evidence, appellants waived any error in denying the motion
for directed verdict at the close of respondent's case in chief." Powell v. Hickman, 793
S.W.2d 885, 891 (Mo. App. W.D. 1990). When the defendants choose to present
evidence, "[a] motion for directed verdict at the close of all evidence becomes the
meaningful motion to preserve the issue." Sanders v. Ahmed, 364 S.W.3d 195, 207 (Mo.
banc 2012). Without it, any question regarding submissibility is not preserved for appeal.
Neither Caleb nor John moved for a directed verdict at the close of all the evidence.
Thus, the Horners' point on appeal regarding the submissibility of the Mansfields' claims
for wrongful death based on negligence is unpreserved for appeal.
In their reply brief, the Horners request plain error review in the event that we
conclude its first point relied on is unpreserved for appeal. Rule 84.13(c) provides that
"[p]lain errors affecting substantial rights may be considered on appeal, in the discretion
of the court, though not raised or preserved, when the court finds that manifest injustice
or miscarriage of justice has resulted therefrom." Rarely will we find plain error in a civil
case. City of Greenwood v. Martin Marietta Materials, Inc., 299 S.W.3d 606, 617 (Mo.
14
App. W.D. 2009). We decline to find that manifest injustice or a miscarriage of justice
resulted from the trial court's denial of the Horners' motion for JNOV.
Though the Horners' first point on appeal is loosely couched in terms of the
submissibility of the Mansfields' claim for wrongful death based on negligence, in fact,
the genesis of their point on appeal is a complaint that the trial court should have entered
judgment in their favor because Misty was a competent adult who had the "absolute
right" to make her own healthcare decisions, including the decision to have a home birth
and to refuse medical treatment following the home birth. The Horners argue that by
choosing to have a home birth and refuse medical treatment, Misty assumed the risks
associated with her decision and that Misty's decision was the actual and proximate cause
of her death. Assumption of the risk is an affirmative defense. See, e.g., Martin v.
Buzan, 857 S.W.2d 366, 368 (Mo. App. E.D. 1993). The burden of proof rested with the
Horners as the proponents of the defense. Stewart v. K-Mart Corp., 747 S.W.2d 205, 208
(Mo. App. E.D. 1988). At trial, the Horners persistently sought to hold Misty
accountable for her own choices, and in keeping with this theory of defense, persuaded
the trial court to submit a comparative fault instruction. That instruction directed the jury
to assign a percentage of fault to Misty if it believed that she "voluntarily participated in
the home birth of her daughter and refused to allow medical personnel to be present,"
causing or contributing to cause her death. The jury considered the evidence, and
assigned 0% fault to Misty, thus rejecting the Horners' defense. "[A] directed verdict is
not given in favor of the party having the burden of proof no matter how overwhelming
that party's evidence may be or how miniscule the other party's evidence may be . . . ."
15
Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993). The standard for reviewing a
denied motion for JNOV and for reviewing a denial of a motion for directed verdict are
essentially the same. Peel v. Credit Acceptance Corp., 408 S.W.3d 191, 204 (Mo. App.
W.D. 2013).
The Horners generally assert that Missouri recognizes "the right of individual
autonomy over decisions relating to one's health and welfare." Cruzan v. Harmon, 760
S.W.2d 408, 416 (Mo. banc 1988), aff'd, 497 U.S. 261 (1990). We accept this premise,
but reject the Horners' claim that Cruzan required the entry of judgment in their favor.
The Mansfields' theory was that the Horners "brainwashed" Misty so that the "choice" to
have an unassisted home birth and to refuse medical treatment was not, practically
speaking, her own. In rejecting the opportunity to assign a percentage of fault to Misty,
the jury apparently agreed.
We decline to hold that the trial court committed plain error in overruling the
Horners' motion for JNOV. The Horners' first point on appeal is denied.
Point Two: Whether the Jury's Verdict Was Supported by Substantial Evidence
The Horners' second point on appeal argues that the trial court erred in denying
their motion for a new trial because the $108,650,000 verdict was not supported by
substantial evidence and because the jury placed no fault on Misty, despite the fact that
no evidence was presented that she was incompetent to make her own healthcare
decisions. The Horners claim that the verdict indicates that the jury "was motivated by
bias, passion and prejudice" so that a new trial was appropriate. [Appellants' Brief p. 31.]
16
We review the trial court's denial of a motion for a new trial for abuse of
discretion. Westerman v. Shogren, 392 S.W.3d 465, 469 (Mo. App. W.D. 2012). An
abuse of discretion occurs when the trial court's ruling is clearly against the logic of the
circumstances before the court at the time and is so unreasonable and arbitrary that it
shocks one's sense of justice and indicates a lack of careful consideration. Id. at 469-70.
In considering whether the trial court abused its discretion, we view the facts in the light
most favorable to the trial court's order. St. Louis County v. River Bend Estates
Homeowners' Ass'n, 408 S.W.3d 116, 134 (Mo. banc 2013).
A simple claim that the jury's verdict was excessive does not entitle a movant to a
new trial. Johnson v. Allstate Ins. Co., 262 S.W.3d 655, 668 (Mo. App. W.D. 2008). "To
obtain a new trial on the basis of an excessive verdict, the defendant must demonstrate
that the verdict was the product of bias and prejudice." Id. The defendant meets that
burden if he establishes that "the verdict was 'glaringly unwarranted by the evidence and
that some trial error or misconduct by the prevailing party was responsible for
prejudicing the jury against the defendant.'" Id. (quoting Armon v. Griggs, 60 S.W.3d 37,
40 (Mo. App. W.D. 2001)). "A jury verdict is excessive when the amount of the verdict
exceeds fair and reasonable compensation for plaintiff's damages." Harrell v. Cochran,
233 S.W.3d 254, 258 (Mo. App. W.D. 2007).
Neither the Horners' motion for a new trial nor their brief demonstrate that the
verdict was a product of bias and prejudice. Nowhere in the motion for new trial do the
Horners allege that there was "some trial error or misconduct by [the Mansfields]" so that
the verdict was a product of bias or prejudice. The Horners' second point on appeal
17
argues that the jury's verdict was the product of bias and prejudice in that the trial court
made "improper evidentiary rulings" and allowed "argument that incited the bias, passion
and prejudice of the jury." [Appellants' Brief p. 33.] The Horners never identify, though,
which improper evidentiary rulings and arguments they claim to have resulted in bias and
prejudice.13 Simply claiming that the amount awarded by the jury was excessive is not
enough to warrant a new trial. Thus, we cannot conclude that the trial court abused its
discretion in denying the Horners' motion for a new trial.
Even if the Horners' motion for new trial would have alleged that "some trial error
or misconduct by the prevailing party was responsible for prejudicing the jury against"
them, we would not find that the trial court abused its discretion in concluding that the
jury's assessment of damages was not so "glaringly unwarranted by the evidence" as to
warrant a new trial. With respect to damages awarded for wrongful death claims, section
537.090 provides:
[T]he trier of the facts may give to the party or parties entitled thereto such
damages as the trier of the facts may deem fair and just for the death and
loss thus occasioned, having regard to the pecuniary losses suffered by
reason of the death, funeral expenses, and the reasonable value of the
services, consortium, companionship, comfort, instruction, guidance,
counsel, training, and support of which those on whose behalf suit may be
brought have been deprived by reason of such death . . . . In addition, the
trier of the facts may award such damages as the deceased may have
suffered between the time of injury and the time of death and for the
recovery of which the deceased might have maintained an action had death
not ensued. The mitigating or aggravating circumstances attending the
death may be considered by the trier of the facts . . . .
13
In the argument following their third point on appeal, the Horners state that "the jury's excessive verdict
was, in part, the product of the irrelevant testimony of Appellant John Horner's ex-wife, Karen Tadych."
[Appellants' Brief p. 37.] Even if the Horners would have asserted in the second point on appeal that the jury's
verdict was the result of the trial court's improper entry of Tadych's testimony, we would reject the argument
because, as discussed infra, we do not conclude that the trial court erred in admitting Tadych's testimony.
18
Here, the Mansfields asked the jury to assess compensatory damages, including both
economic and non-economic damages, as well as damages for aggravating circumstances
against the Horners. Their request was supported by the evidence presented a trial.
The Mansfields provided the testimony of Dr. Ward, an economist who gave his
expert opinion as to the economic losses suffered as a result of Misty's death. Dr. Ward
valued the economic losses at $645,020. Both Gail and Darrell testified as to the non-
economic damages suffered from Misty's death. In particular, they testified as to the
impact the loss of their daughter had on their lives, including the loss of companionship.
Further, the medical examiner gave expert testimony about the pain that Misty suffered
from her vaginal cuts and tears. Each of these pieces of testimony established damages
that section 537.090 deems recoverable in wrongful death suits.
The jury, after hearing the evidence presented to it and receiving an instruction
regarding the damages it was allowed to award, entered a verdict in the amount of
$108,650,000, with $8,650,000 serving as compensatory damages and $100,000,000
serving as aggravating circumstance damages. The Horners argue that, because the jury's
award of compensatory damages far exceeds the amount Dr. Ward calculated, the award
was excessive. What the Horners fail to appreciate is that compensatory damages include
both economic damages, to which Dr. Ward testified, and non-economic damages, to
which Gail, Darrell, and the medical examiner testified. Thus, we do not conclude that
the trial court abused its discretion in finding that the amount of compensatory damages
19
found in the jury's verdict was not "glaringly unwarranted by the evidence" presented at
trial.
The Horners further argue that the total damage award is excessive because it
exceeds the amount requested by the Mansfields' counsel during closing argument. The
Mansfields asked the jury to award $88,385,260 in total damages. The Horners fail to
cite any case law that provides a verdict is excessive if it is more than the award
requested by plaintiff's counsel. "Failure to cite relevant authority supporting a point or
to explain the failure to do so preserves nothing for review." Goudeaux v. Bd. of Police
Comm'rs of Kansas City, 409 S.W.3d 508, 516 (Mo. App. W.D. 2013) (internal quotation
marks omitted). The Horners failed to preserve this argument. Even if they had
preserved the argument, though, our case law has consistently held that a jury is free to
award damages above what is requested. See, e.g., Id. at 521 (recognizing "the legion of
cases where a plaintiff suggests a damage award in a personal injury case during closing
only to receive a higher award from the jury").
The Horners' final argument in its second point on appeal is that the trial court
abused its discretion in denying the motion for new trial because the jury's verdict failed
to properly apportion damages to reflect Misty's fault in her death. The Horners again
argue Misty chose to refuse medical treatment so that the jury was incorrect to conclude
that she bore no fault in her death. The verdict form given by the trial court to the jury
required the jury to calculate Misty's fault in her death. The jury did so, finding that
Misty shouldered zero percent of the blame. The jury was presented with evidence from
which it could have concluded that Misty was brainwashed so that her choices to have a
20
home birth and refuse professional medical care were not the product of her free will.
While the Horners presented competing evidence that Misty retained the ability to
choose, the jury rejected that evidence. We cannot conclude that the trial court abused its
discretion in concluding that the jury's apportionment of fault was supported by sufficient
probative evidence.
The Horners' second point on appeal is denied.
Point Three: Whether the Verdict Violated the Horners' Constitutional Right to Due
Process
The Horners' third point on appeal argues that the trial court erred in overruling
their motion for a new trial because the verdict awarding $108,650,000 in damages
violated their constitutional right to due process under the Fourteenth Amendment of the
United States Constitution and under Article I, section 10 of the Missouri Constitution.
The Horners assert that, when scrutinized under the framework of State Farm Mutual
Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), the jury's verdict
constitutes a grossly excessive award so that it is an arbitrary deprivation of the Horners'
property.
"'The assessment of damages is primarily a function for the jury.'" Krysa v.
Payne, 176 S.W.3d 150, 155 (Mo. App. W.D. 2013) (quoting McCormack v. Capital
Elec. Constr. Co., 159 S.W.3d 387, 395 (Mo. App. W.D. 2004)). Ordinarily, we must
defer to the jury's determination of damages because it is in a better position to assess the
credibility of the witnesses and to determine the appropriate compensation. Id. Thus, as
we stated in our review of the Horners' second point on appeal supra, we generally
21
review the trial court's conclusion regarding the reasonableness of the jury's verdict for
abuse of discretion. Westerman, 392 S.W.3d at 469.
The Horners challenge the jury's entry of damages for aggravating circumstances
as constitutionally excessive. Aggravating circumstance damages in wrongful death
cases are subject to the same due process safeguards as punitive damages awarded in
other cases. Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 810 (Mo.
App. W.D. 2008) (citing Call v. Heard, 925 S.W.2d 840, 849 (Mo. banc 1996)). Thus,
decisions addressing due process considerations in cases involving an award of punitive
damages are equally applicable to cases awarding damages for aggravating circumstances
in a wrongful death case.
"The decision to punish a tortfeasor through an award of punitive damages 'is an
exercise of state power that must comply with the Due Process Clause of the Fourteenth
Amendment'" of the United States Constitution and with Article I, section 10 of the
Missouri Constitution. Krysa, 176 S.W.3d at 155 (quoting Letz, 975 S.W.2d at 177).
"We 'review the trial court's determination of the constitutionality of the punitive award
de novo, deferring to the trial court's findings of fact, unless they are clearly erroneous.'"
Heckadon v. CFS Enters., Inc., 400 S.W.3d 372, 382 (Mo. App. W.D. 2013) (quoting
Krysa, 176 S.W.3d at 156).
Compensatory damages and punitive damages serve separate purposes. Campbell,
538 U.S. at 416. While compensatory damages "'are intended to redress the concrete loss
that the plaintiff has suffered by reason of the defendant's wrongful conduct,'" punitive
damages "are aimed at deterrence and retribution." Id. (quoting Cooper Indus., Inc. v.
22
Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001)). The Due Process Clause
"prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor."
Id. "'[W]hen an award can fairly be categorized as 'grossly excessive' in relation to the
interests of punishment and deterrence, it penetrates the 'zone of arbitrariness' that
violates the Due Process Clause . . . .'" Krysa, 176 S.W.3d at 155-56 (quoting Letz, 975
S.W.2d at 177).
There is "[n]o precise constitutional line or simple mathematical formula" to
determine whether a punitive damage award is grossly excessive. Heckadon, 400 S.W.3d
at 382. "Rather, the imposition of punitive damages requires a proper balance be struck
between the need for punishment to deter future misconduct and the severity of the
award." Id. The United States Supreme Court has instructed courts reviewing the
constitutionality of punitive damage awards to consider three guideposts: "(1) the degree
of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or
potential harm suffered by the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases." Campbell, 538 U.S. at 418 (citing BMW of
N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)). The Missouri legislature has effectively
codified the obligation to consider due process implications at section 510.263.6 which
directs that the doctrine of remittitur "based on the trial judge's assessment of the totality
of the surrounding circumstances, shall apply to punitive damage awards." Consistent
with the holding in Call, 925 S.W.2d at 849, the legislature has expressed its intent that
due process concerns should apply equally to aggravating circumstances awards, as
23
section 510.263.7 defines "punitive damages" for purposes of section 510.263 as "an
award for punitive or exemplary damages or an award for aggravating circumstances."
"'The most important indicium of the reasonableness of a punitive damages award
is the degree of reprehensibility of the defendant's conduct.'" Campbell, 538 U.S. at 419(quoting Gore, 517 U.S. at 575). There are several factors to consider when determining
the degree of reprehensibility: (1) whether "the harm caused was physical as opposed to
economic"; (2) "whether the tortious conduct envinced an indifference or a reckless
disregard of the health or safety of others"; (3) whether "the target of the conduct had
financial vulnerability"; (4) whether "the conduct involved repeated actions or was an
isolated incident"; and (5) whether "the harm was the result of intentional malice,
trickery, or deceit, or mere accident." Id.Using the factors set forth in Campbell, we conclude that the degree of the
Horners' reprehensibility was high. First, the harm caused by the Horners was physical.
Misty lost her life as a result of the botched episiotomy and as a result of the Horners'
refusal to allow her to seek professional medical care following Sydney's stillbirth. The
Mansfields' damages, both economic and non-economic, sprung from that physical harm.
Second, the Horners' negligence demonstrated "an indifference or reckless
disregard" to Misty's health and safety. Prior to Caleb and Misty's marriage, the couple
attended pre-marital counseling, during which John and Caleb began the process of
brainwashing Misty so that she would wholly submit to Caleb and refuse professional
medical care. The brainwashing, while perhaps not complete at the time of the wedding
ceremony, continued throughout Caleb and Misty's marriage. The Horners encouraged
24
Misty to discontinue relationships that did not include "healthy spiritual tie[s]," which
resulted in Misty's isolation from friends and family. Then, knowing that Misty would
submit to Caleb, the Horners convinced Misty that an unassisted home birth was
appropriate for the delivery of her first child. Despite Walla's advice that Misty go to the
hospital because the child was in distress, Caleb refused to allow Misty to go. Then, after
laboring for days, Caleb performed an episiotomy on Misty with unsterilized household
scissors, and Misty never received medical treatment for her vaginal cuts. In the
aftermath of Sydney's home birth, the Horners refused to allow Misty to seek
professional medical care. Those facts, when considered in concert, support the
conclusion that the Horners demonstrated an "indifference or reckless disregard" to
Misty's health and safety.
The third factor, whether "the target of the conduct had financial vulnerability," is
inapplicable in the instant suit. The fourth factor, whether "the conduct involved repeated
actions or was an isolated incident," is applicable. Tadych testified as to four other home
births in which John had been involved that resulted in the death of the child, and the
death of one child and one adult who both suffered from a treatable illness or disease.
Every death was the result of medical treatment being rejected in favor of faith healing,
including John's purported healing power. "'[A] recidivist may be punished more
severely than a first offender [because] repeated misconduct is more reprehensible than
an individual instance of malfeasance,'" but "in the context of civil actions courts must
ensure the conduct in question replicates the prior transgressions." Campbell, 538 U.S. at
423 (quoting Gore, 517 U.S. at 577). Here, the conduct in question -- brainwashing
25
individuals so that they refuse professional medical care in favor of relying on John's
purported healing power -- demonstrate that John's conduct was not an isolated incident.
Finally, the evidence demonstrated that Misty's death "was the result of intentional
malice, trickery, or deceit," and not "mere accident." According to Gail's testimony,
Misty believed, based on representations made by the Horners, that Leathers and Nield
were midwives and, therefore, qualified to deliver her child. Further, the Horners
claimed that John had a healing power, despite John's involvement in four botched home
births that resulted in the death of the child and two deaths of persons who suffered from
treatable illnesses or diseases. Then, following the episiotomy with unsterilized
household scissors and Sydney's stillbirth, the Horners forbade Misty from seeking
professional medical treatment and lied to outsiders, including a first responder, about
Misty's condition.
The second guidepost requires us to consider the disparity between the
compensatory damages awarded and the punitive damages awarded. "[C]ourts must
ensure that the measure of punishment is both reasonable and proportionate to the amount
of harm to the plaintiff and to the general damages recovered." Campbell, 538 U.S. at
426. The Campbell Court declined "to impose a bright-line ratio which a punitive
damages award cannot exceed" but noted "that, in practice, few awards exceeding a
single-digit ratio between punitive and compensatory damages . . . will satisfy due
process." Id. at 425.
Here, the compensatory damages were substantial: $8,650,000. In addition to the
$645,020 of economic damages to which Dr. Ward testified, the jury awarded just over
26
$8 million of non-economic damages. The $8 million included damages for the pain and
suffering Misty endured between the time of the episiotomy and her death as well as the
loss of companionship that the Mansfields suffered as a result of their daughter's death.
Contrary to the Horners' suggestion, we do not find that the compensatory damage
calculation included a punitive element because, as discussed supra, evidence regarding
the damages suffered by Misty and the Mansfields supported the award. The aggravating
circumstance damages were also substantial: $100 million.
The ratio of the aggravating circumstance damages to the compensatory damages
is approximately 11 to 1. The Horners claim that this ratio is "[itself] indicative of an
excessive verdict." [Appellants' Brief p. 37.] While Campbell indicated that "[s]ingle-
digit multipliers are more likely to comport with due process, while still achieving the
State's goals of deterrence and retribution," we disagree with the Horners that the 11 to 1
ratio, standing alone, is indicative of an excessive verdict. 538 U.S. at 425. When
considering the evidence, the ratio is appropriate.
The jury trial was conducted over a two-week period, during which the jury heard
evidence about Misty's injury and death as well as the Horners' actions surrounding her
injury and death. As discussed supra, the Horners' actions are highly reprehensible.
Further, there was evidence that Misty was not the only victim of John's brainwashing.
Given the reprehensibility of the Horners' actions as well as the goal to deter the Horners
from similar conduct in the future justifies the 11 to 1 ratio so that, even considering the
substantial compensatory damages awarded, substantial punitive damages were also
appropriate. To conclude otherwise would ignore the unique circumstances of this case.
27
The final guidepost set forth in Campbell requires us to consider "the disparity
between the punitive damages award and the 'civil penalties authorized or imposed in
comparable cases.'" 538 U.S. at 428 (quoting Gore, 517 U.S. at 575). The Horners do
not cite, and we are not aware of, any civil penalties that were authorized to be imposed
against the Horners. Thus, this guidepost offers no guidance to our analysis.
Having considered the three guideposts set forth in Campbell for reviewing
whether an award for aggravating circumstances passes constitutional muster, we do not
conclude that the jury's verdict was grossly excessive, especially in light of the
reprehensibility of the Horners' actions.
The Horners' third point on appeal is denied.
Point Four: Whether Maintaining the Instant Suit Violated the First Amendment
The Horners' fourth point on appeal argues that the trial court erred in denying its
motion for JNOV because the Mansfields' suit required the jury to address the merits of
religious beliefs. In particular, the Horners claim that the jury was required to determine
the "sincerity of Misty's religious beliefs" as well as the merits of the Horners' religious
beliefs. [Appellants' Brief p. 40.] The Mansfields assert that this point on appeal is
unpreserved for appeal because the Horners did not make a sufficiently specific motion
for directed verdict following the close of the Mansfields' evidence.
"Constitutional issues are waived unless raised at the earliest possible opportunity
consistent with orderly procedure." Hollis v. Blevins, 926 S.W.2d 683, 683 (Mo. banc
1996). Here, Caleb's answer to the Mansfields' petition stated the following as an
"affirmative defense":
28
Defendant further answers that Plaintiffs' Petition for Damages is an
attempt to interfere with the decedent's and parties' freedom of religion and
assembly, which is a direct violation of both the Missouri Constitution and
the United States Constitution, and should therefore be dismissed.
John's answer to the Mansfields' petition contained a similar "affirmative defense":
In further response, Plaintiffs' daughter, the decedant [sic], Misty
Mansfield/Horner, was always in her right mind. Misty Mansfield/Horner,
being an emancipated adult, having made clear to everyone that [sic] came
in contact with her, that from her personal discovery of the risks associated
with both hospital births and home births, understood these risks and chose
to exercise her religious freedom to trust God at home. Many, including
Defendant, that [sic] came into contact with Misty heard her say, "I would
rather die by the hand of God, than live by the hand of men." This was
even stated to the police officers of Lee's Summit. Defendant asserts that
both he and Misty had/have the right to express all religious views
according to the freedom of religious expression and assembly afforded by
the Constitutions of Missouri and the United States.
According to Hollis, the Horners' claimed constitutional error was not waived because
they raised it at the earliest opportunity: in their answers to the Mansfields' petition.14
Whether a constitutional issue has been waived is distinct from whether a
constitutional issue has been preserved. To properly preserve a constitutional question, a
party must:
(1) raise the constitutional question at the first available opportunity; (2)
designate specifically the constitutional provision claimed to have been
violated, such as by explicit reference to the article and section or by
quotation of the provision itself; (3) state the facts showing the violation;
and (4) preserve the constitutional question throughout for appellate
review.
14
Perhaps a more efficient strategy would have been to file a motion to dismiss the Mansfields' petition for
failure to state a claim in lieu of an answer, much like the defendants did in Gibson v. Brewer, 952 S.W.2d 239, 244
(Mo. banc 1997). There, in response to a motion to dismiss from the defendant, the trial court issued a judgment
dismissing all counts for "'failure to state a claim upon which relief can be granted and because such claims as
alleged against said defendant infringe upon its rights provided by the First Amendment to the United States
Constitution.'" Id.29
Callier v. Dir. of Revenue, 780 S.W.2d 639, 641 (Mo. banc 1989) (emphasis added)
(internal quotation marks omitted). The Horners failed to meet the final requirement.
As we concluded in our discussion of the Horners' first point on appeal, supra,
Caleb's oral "motion to dismiss" following the Mansfields' evidence was insufficiently
specific so that the Horners' subsequent motion for JNOV was without basis and
preserved nothing for review. Further, the Horners elected to present their own evidence
and failed to move for a directed verdict at the close of all the evidence so that any
subject appropriate for a JNOV, including whether the instant suit required the jury to
adjudicate the merits of religious beliefs, was not preserved for our review.
The Horners, in their reply brief, ask us to review their fourth point on appeal for
plain error pursuant to Rule 84.13(c) in the event that we conclude its fourth point on
appeal is unpreserved. "Plain errors affecting substantial rights may be considered on
appeal, in the discretion of the court, though not raised or preserved, when the court finds
that manifest injustice or miscarriage of justice has resulted therefrom." Rule 84.13(c).
Plain error is rarely present in civil cases. City of Greenwood, 299 S.W.3d at 617.
Finding that this suit did not require the jury to determine the sincerity of Misty's
religious beliefs or the merits of the Horners' religious beliefs, we decline to find manifest
injustice or a miscarriage of justice.
"The First Amendment applies to any application of state power, including judicial
decision on a state's common law." Gibson v. Brewer, 952 S.W.2d 239, 246 (Mo. banc
1997) (citing Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190, 191 (1960)). The First
Amendment, insofar as it applies to the Free Exercise Clause, "encompasses the freedom
30
to believe and the freedom to act." Hester v. Barnett, 723 S.W.2d 544, 558 (Mo. App.
W.D. 1987) (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)). Only the
freedom to believe is absolute. Id. "Conduct remains subject to regulation for the
protection of society." Cantwell, 310 U.S. at 304. Courts have not hesitated to impose
tort liability "where the religious conduct otherwise protected 'posed some substantial
threat to public safety, peace or order.'" Hester, 723 S.W.2d at 558 (quoting Sherbert v.
Verner, 374 U.S. 398, 403 (1963)).
The Mansfields' suit sought to establish liability for the Horners' actions, not their
beliefs. A court may impose liability for conduct "[i]f neutral principles of law can be
applied without determining questions of religious doctrine, polity, and practice."
Gibson, 952 S.W.2d at 246. "Thus, where the truth or falsity of a religious belief
becomes the object of judicial redress, the inquiry 'enters a forbidden domain.'" Hester,
723 S.W.2d at 558 (quoting United States v. Ballard, 322 U.S. 78, 87 (1944)). The
Horners argue that the Mansfields' suit required the jury to examine the sincerity of
Misty's religious beliefs as well as the merits of the Horners' religious belief in faith
healing. We disagree.
We acknowledge that "[g]overnmental scrutiny of the sincerity of one's religious
belief[s] is offensive to our tradition of individual rights." Penner v. King, 695 S.W.2d
887, 889 (Mo. banc 1985). Nonetheless, the jury was not asked to determine whether
Misty believed in submitting to Caleb and faith healing. Both the Mansfields and the
Horners agreed as to that point during trial. The Mansfields asserted to the jury that
Misty was brainwashed by the Horners so that she believed, without reservation, in the
31
virtues of submitting to Caleb and faith healing. While the Horners disagreed as to
whether Misty was brainwashed, they, too, asserted to the jury that Misty believed in
submission and faith healing. To claim on appeal that this case required the jury to
determine the sincerity of Misty's beliefs ignores the record below.
We also find that this case did not require the jury to determine the validity of the
Horners' religious belief in faith healing. Instead, this case required the jury to determine
whether Caleb and John were negligent for their actions during the home birth or
subsequent to the home birth. The jury instruction gave the jury several theories for
finding Caleb negligent:
(a) defendant Caleb Horner failed to arrange health care for Misty; or
(b) defendant Caleb Horner failed to account and prepare for Sydney being
in a breach [sic] position; or
(c) defendant Caleb Horner failed to adequately represent the abilities of
Wendi Nield and Amber Leathers to Misty Mansfield; or
(d) defendant Caleb Horner failed to act on information he was given from
more knowledgeable sources than himself; or
(e) defendant Caleb Horner failed to properly prepare himself to conduct a
home birth; or
(f) defendant Caleb Horner had Misty submit to a home birth without
ensuring that those present were qualified to assist in and perform a home
birth; or
(g) defendant Caleb Horner performed an episiotomy on Misty and/or cut
her vagina; or
(h) defendant Caleb Horner prevented Misty from making a fully informed
decision on whether or not she wanted medical attention; or
(i) defendant Caleb Horner prevented Misty from receiving medical
attention . . . .
32
Similarly, the jury instructions gave the jury several theories for finding John negligent:
(a) defendant John Horner convinced Caleb Horner to have Misty submit to
a home birth without ensuring those present were qualified to assist in and
perform a home birth; or
(b) defendant John Horner prevented Misty from making a fully informed
decision on whether or not she wanted medical attention; or
(c) defendant John Horner prevented Misty from receiving medical
attention; or
(d) defendant John Horner misrepresented his ability to heal . . . .
None of these instructions required the jury to determine the validity of the Horners'
belief in faith healing. The jury never had to determine "the truth or falsity" of faith
healing. Instead, the instructions required the jury to determine whether or not the
Horners' actions -- particularly with respect to Caleb's actions during the home birth and
John and Caleb's actions preventing Misty from seeking medical treatment following the
home birth -- constituted negligence. Thus, we do not conclude that the trial court
committed plain error in overruling the Horners' motion for JNOV with respect to their
claim of a First Amendment violation.
The Horners' fourth point on appeal is denied.
Point Five: Whether Disqualifying Nield from Testifying Constituted an Abuse of
Discretion
The Horners' fifth point on appeal argues that the trial court abused its discretion
in disqualifying Nield as a witness. The Horners claim that Nield did not violate "the rule
on witnesses" because the trial court invoked the rule with respect to witness testimony,
not opening statements. [Appellants' Brief p. 42.] Further, the Horners contend that
there was no proof presented to the trial court that Nield was present during opening
33
statements as a result of "the consent, connivance or procurement of" the Horners.
[Appellants' Brief p. 42.] The Mansfields assert that this issue is unpreserved for appeal
because the Horners never made an offer of proof at trial regarding the admissibility of
Nield's testimony.
Our Supreme Court has set forth the four prerequisites for pursuing a claim of
evidentiary error on appeal:
First, the party must raise the claimed error in a timely fashion, which
means (when the claim is that the trial court improperly excluded evidence)
that the proponent must offer the evidence at trial and make a detailed offer
of proof concerning that evidence when the trial court orders that it be
excluded. Second, the party must preserve that claim by including it in its
motion for a new trial. Third, the party must present this claim in a proper
point relied on in the appellate brief. Finally, the party must provide a
sufficient argument on that point in the party's brief.
Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 453 n.4 (Mo. banc 2014) (citations omitted).
The Horners have failed to meet the first prerequisite.
"Ordinarily, in order to preserve an argument that evidence was improperly
excluded at trial for appeal, the proponent of that evidence is required to make an offer of
proof." KRP ex rel. Brown v. Penyweit, 219 S.W.3d 829, 836 (Mo. App. W.D. 2007). In
addition to being specific and definite, the offer of proof must demonstrate (1) what the
evidence will be; (2) the purpose and object of the evidence; and (3) each fact essential to
establishing the admissibility of the evidence. Terry v. Mossie, 59 S.W.3d 611, 612 (Mo.
App. W.D. 2001). "The preferable way to make an offer of proof is by asking the
proposed witness questions outside the jury's presence, but narrative offers of proof are
occasionally found to be adequate." Id. (emphasis omitted).
34
Prior to trial, the trial court indicated that "[t]he rule excluding witnesses from the
courtroom while other witnesses are testifying" would be invoked. Nield remained in the
courtroom during the Mansfields' and Leather's opening statements. Immediately
following the opening statements, John asked the trial court if Nield could be in the
courtroom and still testify. The trial court said, "No, she cannot, okay. The rule has been
invoked and it excludes all witnesses who will be testifying. It excludes them from
throughout the entire trial." The Horners never attempted to introduce Nield as a witness
and never made an offer of proof to the trial court regarding Nield's testimony. Thus, the
trial court was unaware as to what Nield would testify, the purpose and object of Nield's
testimony, and the facts essential to establishing the admissibility of Nield's testimony.
This point is unpreserved for our review.
Perhaps recognizing that we would conclude that the point is unpreserved for
review, the Horners ask in their reply brief for plain error review. Under Rule 84.13(c),
"[p]lain errors affecting substantial rights may be considered on appeal, in the discretion
of the court, though not raised or preserved, when the court finds that manifest injustice
or miscarriage of justice has resulted therefrom." Plain error requires more than a finding
of mere prejudice. City of Greenwood, 299 S.W.3d at 617. Instead, the error must have
"'affected substantial rights and a manifest injustice or miscarriage of justice [must have]
resulted therefrom.'" Id. (quoting Ruzicka v. Ryder Student Transp. Servs., Inc., 145
S.W.3d 1, 15 (Mo. App. S.D. 2004)).
The decision to permit or exclude a witness who has violated the rule of exclusion
to testify is within the trial court's discretion. Frasher ex rel. Autenrieth v. Whitsell, 832
35
S.W.2d 18, 19 (Mo. App. W.D. 1992). To establish an abuse of discretion, the appellant
must make "a clear showing of abuse and prejudice as a result of the trial court's ruling."
Id. The appellant must cite specific grounds for prejudice. Id.Here, the Horners' brief fails to assert any specific ground for prejudice. The brief
simply states, "Wendi was one of only a few people that [sic] had intimate knowledge of
the events surrounding the birth and Misty's decision to refuse medical care."
[Appellants' Brief p. 44.] The brief never delineates what Nield's testimony would have
established at trial to which the other witnesses present for the home birth -- Moore,
Caleb, and Leathers -- did not already testify. In their reply brief, the Horners assert that
Nield's testimony was proper because she "observed first-hand Misty's birth and the
events that followed." [Reply Brief p. 14.] Again, simply stating that Nield was present
for the home birth is not enough; a demonstration of prejudice requires a specific
explanation of how Nield's testimony, in particular, would have aided the Horners.
The Horners' fifth point on appeal is denied.
Point Six: Whether Admitting Tadych's Testimony Constituted an Abuse of
Discretion
The Horners' sixth point on appeal argues that the trial court erred in admitting
Tadych's testimony. The Horners claim that Tadych's testimony was "was irrelevant and
immaterial, did not tend to prove or disprove any issue in the case, and . . . only
engendered the hatred, passion, and prejudice of the jury." [Appellants' Brief p. 45.] The
Horners assert that Tadych was not present for the home birth so that the only purpose of
her testimony was to "impugn the character and religious beliefs" of the Horners."
36
[Appellants' Brief p. 45.] The Horners further contend that the testimony Tadych offered
about "cults" and "brainwashing" was inappropriate because it is a topic for experts, not
lay persons.
There is no dispute that the Horners objected to the admission of Tadych's
testimony based on its relevance. However, the objection at trial was narrower than the
scope of their point on appeal. At trial, the Horners objected that Tadych's testimony was
not relevant because she did not have first-hand knowledge of the relationship between
Caleb and Misty, nor of the circumstances of Sydney's birth or Misty's death as Tadych
was not present. This objection at best preserved the issue of the logical relevance of
Tadych's testimony -- that is the extent to which it tended to prove or disprove an issue in
dispute. The objection did not preserve a claim of error that Tadych's testimony was
legally irrelevant because it was more prejudicial than probative in its effect, or that
Tadych's testimony was improper expert testimony. "[A]n objection to evidence must be
sufficiently clear and definite so that the trial court will understand the reason for the
objection." Blount v. Peipers, 864 S.W.2d 392, 393 (Mo. App. E.D. 1993) (holding that
objection on the grounds of irrelevancy without explanation for why the evidence was
irrelevant preserved nothing for appellate review). Though all of the claimed bases of
error in the admission of Tadych's testimony raised on appeal were not the subject of a
timely objection at trial and are not preserved, the Horners request plain error review.
The trial court is vested with broad discretion regarding the admission or the
exclusion of evidence so that the trial court's decision will not be disturbed absent abuse
of discretion. Peterson v. Progressive Contractors, Inc., 399 S.W.3d 850, 869 (Mo. App.
37
W.D. 2013). The trial court abuses its discretion when the ruling is clearly against the
logic of the circumstances then before the trial court and is so unreasonable and arbitrary
that the ruling shocks the sense of justice and indicates a lack of careful deliberate
consideration. Secrist v. Treadstone, LLC, 356 S.W.3d 276, 280 (Mo. App. W.D. 2011).
A reversal of the trial court's decision is appropriate only if the error was prejudicial so
that the trial court's error affected the outcome of the trial. Id.To be admissible, evidence must be both logically and legally relevant.
Westerman, 392 S.W.3d at 474. Evidence is logically relevant if it "'make[s] the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.'" Id. (quoting Secrist,
356 S.W.3d at 281). Legal relevance, on the other hand, concerns the balance between
the probative value and the prejudicial effect of the evidence. Id. "That balancing
requires the trial court to 'weigh the probative value, or usefulness, of the evidence
against its costs, specifically the dangers of unfair prejudice, confusion of the issues,
undue delay, misleading the jury, waste of time, or needless presentation of cumulative
evidence.'" Id. (quoting Adkins v. Hontz, 337 S.W.3d 711, 720 (Mo. App. W.D. 2011)).
If the cost of the evidence outweighs its usefulness, the evidence is not legally relevant
and should be excluded. Id.Although not completely apparent from their brief, the Horners argue that
Tadych's testimony was neither logically nor legally relevant. As to the first requirement,
logical relevance, the Horners assert that Tadych has "absolutely no firsthand knowledge
of the events surrounding Misty's death." [Appellants' Brief p. 46.] This argument
38
overlooks a pervasive issue in this case: whether Misty was brainwashed so that she
lacked the ability to choose whether to seek medical treatment. Tadych provided
testimony as to Misty's indoctrination, including the pre-marital counseling and isolation,
into the religious group led by John. Tadych's testimony provided the jury with insight as
to whether Misty, at the time of the home birth and at the time of her death, had the
capability to choose. Thus, Tadych's testimony was logically relevant.
With respect to the second requirement, legal relevance (which is not preserved
for our review), the Horners claim that the Mansfields "only introduced [Tadych's]
testimony to indict the past behaviors and statements of Appellant John Horner and paint
both Appellants with the same brush." [Appellants' Brief p. 46.] While the Horners
make this broad statement, they never explain how Tadych's testimony was prejudicial.
In other words, the Horners' brief does not explain to what Tadych testified that would
result in "danger[] of unfair prejudice, confusion of the issues, undue delay, misleading
the jury, waste of time, or needless presentation of cumulative evidence." Westerman,
392 S.W.3d at 474. While we can surmise why the Horners consider Tadych's testimony
prejudicial, our role is that of a neutral, not an advocate. See Kenney v. Vansittert, 277
S.W.3d 713, 722 (Mo. App. W.D. 2008) ("We may not assume the role of advocate for a
party by attempting to develop an appellate argument the party has failed to set forth
itself." (internal quotation marks omitted)). Thus, we must reject the Horners' contention
that Tadych's testimony was legally irrelevant.
The Horners further assert that Tadych's testimony regarding the concepts of
"cults" and "brainwashing" was inappropriate because whether a person's free will can be
39
overcome by brainwashing and whether Misty was, in fact, brainwashed, are topics that
are properly the subject of expert testimony, not lay testimony. They cite no authority for
this proposition. Moreover, the record does not support the premise that the trial court
admitted Tadych's testimony as "expert testimony." Rather, in response to a motion in
limine filed by the Horners, the trial court denied the Mansfields any ability to use the
word "cult" until an adequate foundation was laid. Tadych testified to that foundation
based on her personal knowledge. The trial court ruled her testimony was admissible not
because it was expert testimony but because her personal experiences and views with
regard to the Horners' practices would assist the jury. We cannot find this to be an abuse
of discretion.
The Horners' sixth point on appeal is denied.
Point Seven: Whether Certain Evidence Should Have Been Admitted at Trial
The Horners' seventh point on appeal states:
The trial court erred in precluding Appellants from introducing certain
evidence at trial on the grounds that Appellants failed to follow the
applicable rules of procedure because introduction of this evidence would
not have resulted in unfair disadvantage or surprise to Respondents, in that
Respondents acquiesced to any non-response by agreeing to postpone
discovery deadlines and then failing to request responses or file a motion to
compel, and in any event, Respondents either already had or were furnished
the Appellants' evidence prior to trial.
[Appellants' Brief p. 49.] (Emphasis added.) The point relied on fails to identify what
"certain evidence" the trial court excluded.
"A blanket challenge that does not identify a specific [trial] court ruling or action
being challenged does not comply with Rule 84.04(d)(1)(A)." Eagle Star Group, Inc. v.
40
Marcus, 334 S.W.3d 548, 554 (Mo. App. W.D. 2010). If the point relied on does not
identify the specific trial court ruling which the appellant deems error, nothing is
preserved for appellate review. Id. While we can discern from the Horners' seventh
point on appeal that they challenge at least one of the trial court's evidentiary rulings, the
point relied on is facially defective because it does not identify of which evidentiary
ruling the Horners complain. Thus, standing alone, the Horners' seventh point on appeal
preserves nothing for review.
Nonetheless, in the argument section following the seventh point, the Horners
reference three categories of evidence that they assert were improperly excluded by the
trial court: (1) evidence regarding the presence of police officers in Caleb and Misty's
home; (2) depositions; and (3) Misty's writings. "'A single point relied on that groups
multiple, disparate claims is multifarious, does not comply with Rule 84.04, and
generally preserves nothing for appellate review.'" Rouse v. Cuvelier, 363 S.W.3d 406,
419 (Mo. App. W.D. 2012) (quoting Gordon v. Heller, 352 S.W.3d 411, 413 n.2 (Mo.
App. E.D. 2011)). While the Horners should have created a separate point relied on for
each category of evidence they argue was improperly excluded, we have chosen to
review their claims of error ex gratia.
The trial court's decision to exclude evidence, whether as a remedy for discovery
violations or because the evidence is inadmissible, will not be disturbed absent an abuse
of discretion. Peterson, 399 S.W.3d at 869; Fairbanks v. Weitzman, 13 S.W.3d 313, 327
(Mo. App. E.D. 2000). The trial court abuses its discretion when the ruling is clearly
against the logic of the circumstances then before the trial court and is so unreasonable
41
and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful
deliberate consideration. Secrist, 356 S.W.3d at 280. A reversal of the trial court's
decision is appropriate only if the error affected the outcome of the trial. Id.Presence of Police Officers in Caleb and Misty's Home
The Horners' first sub point asserts that the trial court "completely barred [the
Horners] from testifying concerning the presence of police officers in the home."
[Appellants' Brief p. 51.] The Horners clarify that they do not challenge the trial court's
decision to exclude evidence regarding the prosecutor's decision not to file criminal
charges against Caleb and John. Instead, the Horners claim that they attempted to enter
evidence that police officers were present in the home to check on Misty's safety and well
being prior to her death, a subject distinct from whether criminal charges were filed
against the Horners. The Horners argue that evidence would have demonstrated that
Misty had an opportunity to seek professional medical treatment but refused on her own
volition.
Prior to trial, the Mansfields filed a motion in limine that asked the trial court to
prohibit the Horners and Leathers from introducing evidence regarding the prosecutor's
decision not to prosecute. The Mansfields' attorney stated during pre-trial proceedings:
As Mr. Caleb Horner had alluded to, there was an investigation.
Ultimately, for whatever reason, no charges were brought. Obviously,
that's a different standard. We're not going to be asking the jury to decide
more likely than not what happened in this case. And any police reports,
any reference to police investigation, I think would just plant that seed in
the jury's mind, and I think it would prejudice them.
The trial court ruled:
42
I think the case law is also pretty clear in this area. We're dealing with two
different standards. The standard for criminal prosecution is beyond a
reasonable doubt. And a prosecution has to be based on that. The standard
for a civil case is completely different. So at this point the . . . motion in
limine is sustained. There is to be no reference to the decision by the
prosecutor's office.
The Horners' point relied on complains about the exclusion of evidence as a "sanction"
for their failure to follow applicable rules of procedure. [Appellants' Brief p. 52.] Yet,
neither the Mansfields' motion in limine nor the trial court's ruling concerned a sanction
for the Horners' failure to participate in discovery or for any other procedural defalcation.
The Horners' complaint about the exclusion of this evidence is without merit given the
error as to which they complain in their point relied on.
Depositions
The Horners' second sub point argues that they "were wholly precluded from using
depositions for any purpose at trial." [Appellants' Brief p. 52.] The Horners give specific
examples, claiming that they were precluded "from impeaching Respondent Gail
Mansfield with glaringly inconsistent statements she made during her deposition" and
"from rehabilitating Caleb's credibility with Caleb's prior deposition testimony."
[Appellants' Brief p. 53.]
Rule 57.07(a) concerns the use of depositions:
Any part of a deposition that is admissible under the rules of evidence
applied as though the deponent were testifying in court may be used against
any party who was present or represented at the taking of the deposition or
who had proper notice thereof. Depositions may be used in court for any
purpose.
43
(Emphasis added.) The Horners' brief, although not clear, indicates that they believe that
the emphasized language of Rule 57.07(a) means that a deposition may be used to
impeach a witness and to rehabilitate a witness's credibility without any limitation. We
disagree.
Deposition testimony is extrinsic evidence. See Mitchell v. Kardesch, 313 S.W.3d
667, 680 (Mo. banc 2010).
[P]arties traditionally have been limited in introducing extrinsic evidence
when the form of impeachment concerns the witness's prior inconsistent
statements or the witness's character for truth and veracity. They generally
may do so when the witness denies the prior statement or specific instance
of conduct only if the subject of the impeachment is material to the issues
rather than collateral.
Id. at 679-80. A matter is collateral to the issues "'if the fact in dispute is of no material
significance in the case or is not pertinent to the issues developed.'" Id. at 680 (quoting
Black v. State, 151 S.W.3d 49, 55 (Mo. banc 2004)).
The Horners cite two instances in which Caleb attempted to impeach Gail with her
deposition testimony. In the first instance, Caleb asked Gail whether Misty returned to
live with the Mansfields after moving out when she graduated from high school. After
Gail stated that Misty never moved back, Caleb told the trial court, "[A]t this time I'd like
to read from Ms. Mansfield's deposition." The trial court refused to allow Caleb to
proceed: "Improper impeachment at this time. You're not allowed at this time, sir."
Whether Misty returned to live with her parents after moving out has no significance in
this case and is collateral. Thus, the trial court did not abuse its discretion in disallowing
Caleb to read from Gail's deposition.
44
In the second instance, the topic of Gail's testimony was an argument that Caleb
and Misty had in Gail's presence unrelated to the home delivery. Caleb asked Gail what
she heard him say to Misty. Gail responded, "I remember you [Caleb] yelling at her and
telling her to shut her mouth." Then Caleb proceeded to tell the trial court that he was
"going to ask [Gail] to read from her own deposition." The trial court responded, "No
you may not, sir." Caleb did not make an offer of proof, leaving us to guess at what
would have been elicited from the deposition. Arguably, any inconsistency in what
Caleb said to Misty during an argument unrelated to the home birth is of no significance
in this case and is collateral. The trial court did not abuse its discretion in disallowing
Caleb to ask Gail to read from her deposition.
The Horners also claim that the trial court erred in refusing to allow the Horners to
use Caleb's deposition testimony to rehabilitate Caleb's credibility. "'[W]hen a witness is
impeached by proof of an inconsistent statement, relevant evidence of the witness' prior
statement consistent with his trial testimony is admissible for the purpose of
rehabilitation.'" Anuhco, Inc. v. Westinghouse Credit Corp., 883 S.W.2d 910, 927 (Mo.
App. W.D. 1994) (quoting Broome v. Bi-State Dev. Agency, 795 S.W.2d 514, 518 (Mo.
App. E.D. 1990)). Caleb's testimony was not impeached by prior, inconsistent statements
he made in a deposition. Thus, to use his deposition to rehabilitate his testimony was
improper. The trial court did not abuse its discretion in disallowing the Horners to use
Caleb's deposition testimony to rehabilitate Caleb's credibility.
45
Misty's Writings
The Horners' final sub point argues that Misty's journal and letter were the "most
important and probative evidence in the whole case [and were] never seen by the jury."
[Appellants' Brief p. 54.] The Horners assert that the trial court abused its discretion in
excluding Misty's writings from evidence and in forbidding testimony about her writings
on the ground that the writings were not produced during discovery. The Horners claim
that Misty's writings were not requested during discovery and, even if they were, the
documents were produced to the Mansfields prior to trial.
The trial court, in response to a motion in limine by the Mansfields, ruled prior to
trial that documents not produced during discovery would not be admissible at trial.
Caleb then stated, "I'm ready to hand over copies of these very things to them right now,"
and although it is not apparent from the transcript, presumably gave a copy of Misty's
writings to the Mansfields' counsel at that point. After the Horners' discussion with trial
court concerning the motion in limine as it applied to Misty's writings, the Horners never
attempted to introduce Misty's writings into evidence.
"When a motion in limine is granted so as to exclude evidence from trial, the party
offering the evidence must still offer it at trial in order to preserve the issue for review on
appeal." Rogers v. Hester ex rel. Mills, 334 S.W.3d 528, 540 (Mo. App. S.D. 2010).
Because the Horners never attempted to introduce Misty's journal or letter into evidence
at trial, we conclude that the Horners never preserved this issue for appeal.
The Horners' seventh point on appeal is denied.
46
Point Eight: Whether the Mansfields' Closing Argument Intentionally Inflamed the
Prejudices of the Jury
The Horners' eighth point on appeal argues that the trial court erred in overruling
their motion for a new trial because the Mansfields' counsel "intentionally inflamed the
prejudices of the jury, misstated the law, and misstated the evidence" during closing
argument. [Appellants' Brief p. 55.] Although the Horners argue that the closing
argument, as a whole, was intended to incite prejudice in the jury, the Horners cite
several statements made by the Mansfields' counsel that they claim constituted emotional
pleas, improper personalizations, character attacks on the Horners, and misstatements of
the law. The Horners acknowledge that they did not object at any time during the
Mansfields' closing argument and ask for plain error review.
"Plain errors affecting substantial rights may be considered on appeal, in the
discretion of the court, . . . when the court finds that manifest injustice or miscarriage of
justice has resulted therefrom." Rule 84.13(c). Not all prejudicial error is plain error.
Rush v. Senior Citizens Nursing Home Dist., 212 S.W.3d 155, 163 (Mo. App. W.D.
2006). With respect to a closing argument, the moving party must "'establish[] that the
argument had a decisive effect on the outcome of the trial and amounts to manifest
injustice.'" Id. (quoting State v. Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003)). In
particular, we will find plain error occurred in the closing argument it if "'contains
reckless assertions, unwarranted by proof and intended to arouse prejudice, which,
therefore, may be found to have caused a miscarriage of justice.'" Coats v. Hickman, 11
47
S.W.3d 798, 805 (Mo. App. W.D. 1999) (quoting Williams v. Jacobs, 972 S.W.2d 334,
344 (Mo. App. W.D. 1999)).
"The trial court has broad discretion regarding closing arguments and closing
arguments are not viewed in isolation." Rush, 212 S.W.3d at 163. Instead, we consider
the closing argument with reference to the entire trial. See id. (concluding that the
claimed error during closing arguments did not constitute a manifest injustice or a
miscarriage of justice because the evidence presented during the trial supported the jury's
verdict). "'[C]ounsel is accorded wide latitude in arguing facts and drawing inferences
from the evidence, and the law indulges a liberal attitude toward closing argument.'"
Morgan Publ'ns, Inc. v. Squire Publishers, Inc., 26 S.W.3d 164, 170 (Mo. App. W.D.
2000) (quoting Rhodus v. Wheeler, 927 S.W.2d 433, 437 (Mo. App. W.D. 1996)).
The Horners cite several statements made by the Mansfields' attorney during
closing argument that they claim constituted plain error:
And there are a lot of children counting on me.
I cannot put them jail. That's where they belong. But I don't have that
power. All I can do is ask you not to let them get away with it, to hold
them responsible.
All these people tried to save her. They said, you people are crazy, you're a
cult, you're brainwashers; you're killing this girl; you're killing babies.
Karen Tadych explained to you how they work. It's a slow, progressive
manipulation.
They said that there were people who talked to Misty throughout the 31
days. They said there was an EMT. Where was that EMT? Where was
that document? It is a lie. A lie is a lie and they are professional liars.
That's what a charlatan is, a con artist. He is a snake oil salesman of the
lowest kind because he is not making money on it; he is killing people.
48
She's a scared little girl. And this monster tells her, no, I'm the man, God
says I decide.
And at 6-6 I've never seen such a small man. Excuse me, 6-10. They think
women are second rate citizens.
Because they killed her. They killed her. For thirty-one (31) days, as
sepsis and infection ate away at organ, after organ, after organ as that little
girl died, and they watched it.
[T]hese monsters used her as a spiritual guinea pig.
John Horner has never delivered a baby. He has killed a few, but he hasn’t
delivered one.
[T]hat baby didn't call a cop, didn't call paramedic. That baby died in
delivery of asphyxiation. What a terrible, disgusting way for a baby to
come into this world.
It all started with John. Karen Tadych told you that. This is all his idea.
Caleb didn't even always believe it. Karen Tadych told you the slow
manipulation process that he used.
What a despicable horrible human being.
Misty was taking scripture from these monsters.
Baby after baby after baby after baby after baby after baby. Let's get him
out of our community! Put him out of business, because Karen Tadych told
you, he will not stop. He is doing it in Mexico now. God only knows what
atrocities he is committing down there. God only knows.
[P]ut them out of the business.
We've got some quacks over in Kansas called the Phelps family. . . . as
much as those people sicken me, they're not anywhere as dangerous as
these people. . . . There are few cults in the country as dangerous as this
man. . . . A modern day Jim Jones is what he is. He thinks he is the
Messiah.
Punish him. I cannot put him in jail. I so wish I could.
Watching them this week, crying on the stand, reminding me of watching
law and order when the killer is on the stand crying.
49
At this time, I usually say, please give defense counsel the same respect and
deference you’ve given me. It would be a lie.
[Appellants' Brief pp. 56-58.] The Horners cite five additional statements they claim
were improperly made during the Mansfields' rebuttal argument:
I've got a baby due Tuesday. Let me tell you what would happen. Let me
tell you what would happen if I was in this guy's position.
What a phony . . . what a phony. What an absolute fraud this man is to try
and tell you it started in her uterus.
If somebody starts deliberating about freedom of religion, you've got to tell
them, that's not in the instructions. . . . This is not a freedom-of-religion
case.
What an absolute sociopath.
Whether defined by the books as a cult, that's what they do. They isolate;
they brainwash; they preclude; they teach.
[Appellants' Brief pp. 58-59.] The Horners do not, with three exceptions discussed infra,
identify which of these statements constituted emotional pleas, which of these statements
constituted improper characterizations, which of these statements constituted character
attacks on the Horners, and which of these statements constituted misstatements of the
law. While we can surmise which statements fall into each category, to do so would
require us to assume the role of advocate and develop the Horners' appellate argument.
Our role as a neutral reviewing court forbids us from acting as an advocate. See Kenney,
277 S.W.3d at 722. Thus, the Horners have not adequately demonstrated that any of
these statements alone entitle the Horners to plain error review.
The Horners specify the alleged delinquencies of three statements they cited in
their brief. They argue: (1) "[The] references to Jim Jones and Fred Phelps are
50
unjustifiable. Few people in the world incite prejudice like these infamous cult leaders."
(2) "[The Mansfields'] Counsel engaged in improper personalization when he spoke about
the fact that he was expecting a baby, and proceeded to insinuate that, if he were in
[Darrell's] position, he would commit acts of violence against [the Horners]." (3) "[The
Mansfields'] Counsel clearly misstated the law when he asked the jury, in the context of
actual damages, to 'put [the Horners] out of business.'" We disagree. None of these
statements resulted in plain error causing "manifest injustice or miscarriage of justice."
The first statement of which the Horners specifically complain is the comparison -
- and, therefore, improper characterization -- of the Horners to Jim Jones and Fred
Phelps. In Gaffney v. Community Federal Savings & Loan Ass'n, the Eastern District
concluded that the trial court did not abuse its discretion when it overruled the
defendants' objection during closing argument to the plaintiff's characterization of the
defendants as "poor people" and as "little people." 706 S.W.2d 530, 536 (Mo. App. E.D.
1986). Because we are reviewing for plain error, our review of the statements concerning
Jim Jones and Fred Phelps is more stringent. There was evidence presented at trial that
John, in particular, was the leader of a religious group and that Caleb actively participated
in the group, and as discussed supra, there was sufficient evidence presented at trial to
support the jury's verdict. Thus, we cannot conclude that the comparison of the Horners
to two notorious religious leaders, while potentially objectionable, resulted in manifest
injustice or a miscarriage of justice.
The second statement of which the Horners specifically complain is the statement
made during the rebuttal argument that the Mansfields' counsel was expecting a baby.
51
The Horners assert that the statement insinuates that the Mansfields' counsel would
intentionally harm the Horners if something similar happened in his situation so that it
was an improper personalization. The Horners fail to read the statement in context of the
rebuttal argument. At the point the Mansfields' counsel made the statement, he was
asking the jury to sign the verdict form finding the Horners negligent and award
aggravating circumstance damages. Thus, the insinuation was that, if he were a juror, he
would find liability and award damages. Even if the Horners' claim that the statement
insinuated intentional harm is correct, the statement did not constitute an improper
personalization. Improper personalization occurs when the closing argument asks the
jury to place themselves in the place of the party. Rhodus, 927 S.W.2d at 437. The
Mansfields' attorney did not ask the jurors to place themselves in the place of the
Mansfields. We cannot conclude the statement about the Mansfields' attorney expecting
a baby resulted in manifest injustice or a miscarriage of justice.
The third statement of which the Horners specifically complain is the suggestion
"to put [the Horners] out of business." The Horners argue it is a misstatement of law.
The Horners assert that "it is not a legitimate function of compensatory or punitive
damages to 'put someone out of business.'" While we agree that "putting someone out of
business" is not the purpose of compensatory damages, we disagree that it is not within
the purview of damages for aggravating circumstances in wrongful death cases. The
purpose of damages for aggravating circumstances, like the purpose for punitive
damages, is "'to inflict punishment and to serve as an example and a deterrent to similar
conduct.'" Hess v. Chase Manhattan Bank, 220 S.W.3d 758, 771 (Mo. banc 2007)
52
(quoting Call, 925 S.W.2d at 849). "Putting someone out of business" is a colloquial
expression for preventing someone from engaging in similar conduct in the future.
Accordingly, we do not find that the Mansfields' attorney misstated the law to the jury so
that manifest injustice or a miscarriage of justice resulted.
In addition to the three statements made during closing arguments that the Horners
specifically challenge, the Horners contend that the cumulative effect of the Mansfields'
closing argument was to engender the jury's hatred, passion, and prejudice. As we did in
Rush, we reviewed the record and, as discussed supra, concluded that there was sufficient
probative evidence presented at trial to support the jury's verdict. Thus, we do not find
that the outcome of the trial was affected by the cumulative effect of the Mansfields'
closing argument so as to amount to manifest injustice or a miscarriage of justice.
The Horners eighth point on appeal is denied.
Point Nine: Whether Section 510.265 Is Applicable So That Remittitur Is Necessary
The Horners' ninth and final point on appeal argues that the trial court erred in
overruling their motion for remittitur. The Horners assert that section 510.265,
Missouri's statutory cap on punitive damages, applies to limit damages for aggravating
circumstances that are awarded in wrongful death cases. This is a question of first
impression.
Section 510.265 provides, in relevant part, that:
1. No award of punitive damages against any defendant shall exceed the
greater of:
(1) Five hundred thousand dollars; or
53
(2) Five times the net amount of the judgment awarded to the plaintiff
against the defendant.
(Emphasis added.) "Punitive damages" is not defined in section 510.265.
Statutory interpretation is a question of law, which is subject to de novo review on
appeal. Hervey v. Mo. Dep't of Corrections, 379 S.W.3d 156, 163 (Mo. banc 2012).
"'The primary rule of statutory interpretation is to ascertain the intent of the legislature
from the language used, to give effect to that intent if possible, and to consider the words
in their plain and ordinary meaning.'" Id. (quoting S. Metro. Fire Prot. Dist. v. City of
Lee's Summit, 278 S.W.3d 659, 666 (Mo. banc 2009)). "Absent statutory definition,
words used in statutes are given their plain and ordinary meaning with help, as needed,
from the dictionary." Am. Healthcare Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d 496,
498 (Mo. banc 1999). However, where the legislature has defined a term in one statute,
its failure to do so in another may be instructive on the subject of intent. See, e.g.,
Hudson v. Dir. of Revenue, 216 S.W.3d 216, 223-24 (Mo. App. W.D. 2007) (holding that
by including a "knowledge" element in two sections of a statute, "the legislature
demonstrated that it knew how to express its intent to require a knowledge element,"
rendering the absence of the element in another statute supportive of "the inference that
the legislature did not intend for there to be a knowledge element"); State v. Bouse, 150
S.W.3d 326, 330-31 (Mo. App. W.D. 2004) (holding that legislature's failure to qualify a
definition though it knew how to do so is instructive in construing statute's intended
meaning).
54
As discussed supra, section 510.263 generally addresses trial procedures in cases
where punitive damage awards are sought. Subsection 510.263.6 provides, in pertinent
part, that: "[t]he doctrines of remittitur and additur, based on the trial judge's assessment
of the totality of the surrounding circumstances, shall apply to punitive damage awards."
As we have observed, this section of Chapter 510 effectively codifies a trial court's
obligation upon request to assess the extent to which such a punitive damage award
comports with due process. (See supra discussion of point relied on three).
Unlike section 510.265, section 510.263 includes a statutory definition for
"punitive damage awards." Subsection 510.263.7 provides that: "As used in this section,
'punitive damage award' means an award for punitive or exemplary damages or an award
for aggravating circumstances." (Emphasis added.) The statutory definition of
"punitive damage award" in section 510.263.7 is instructive. It solidifies that the
legislature: (i) understands that aggravating circumstances damages are not synonymous
with punitive damages as a matter of course; and (ii) plainly knows how to write
legislation to express its intent to include aggravating circumstances within the scope of
"punitive damages" if that is intended.
The Horners argue that the definition of "punitive damage award" in section
510.263.7 should be applied to the term "punitive damages" as used in section 510.265.
To do so, however, would either render the phrase "[a]s used in this section" in section
510.263.7 superfluous or would require us to rewrite the phrase to "as used in this
chapter." We are not permitted to do either. It is "'presumed that the legislature did not
insert idle verbiage or superfluous language in a statute.'" Civil Serv. Comm'n v. Bd. of
55
Alderman, 92 S.W.3d 785, 788 (Mo. banc 2003) (quoting Hyde Park Housing P'ship v.
Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993)). And it is a longstanding principle
in this state that "[a] court has no authority to write into a statute a provision not covered
by its language." State ex rel. Am. Asphalt Roof Corp. v. Trimble, 44 S.W.2d 1103, 1105
(Mo. banc 1931).
These principles are particularly controlling here. Section 510.263 was amended
to add subsection 510.263.7 at the same time that section 510.265 was enacted in 2005 as
a part of House Bill 393. It is thus impossible to characterize the addition of a definition
of "punitive damage awards" in, and applicable only to, section 510.263 at the same time
section 510.265 was enacted without a definition of "punitive damages" as anything other
than purposeful. We thus conclude that the legislature's reference to "punitive damages"
in section 510.265 was not intended to include aggravating circumstances damages
within its scope. Moreover, sections 510.263 and 510.265 will not be in conflict if
different definitions of "punitive damage awards" and "punitive damages" apply. Section
510.263 addresses trial procedures when "punitive damage awards" are claimed and, by
the operation of section 510.263.7, makes it clear that those procedures are equally
available where aggravating circumstances damages are claimed. Section 510.265
purports to establish a statutory cap on "punitive damages." The statues can plainly
operate without being in conflict, even though section 510.263 will apply to aggravating
circumstances damages while section 510.265 will not.
The Horners counter that because case law has declared damages for aggravating
circumstances to be the functional equivalent of punitive damages, the term "punitive
56
damages" in section 510.265 must be construed to include damages for aggravating
circumstances within its scope. We disagree. It is true that in Call v. Heard, our
Supreme Court stated that: "[A]ggravating circumstance damages in wrongful death
cases are the equivalent of punitive damages." 925 S.W.2d at 849 (citing Bennett v.
Owens-Corning Fiberglas Corp., 896 S.W.2d 464, 466 (Mo. banc 1995))). The
comparison of aggravating circumstances damages to punitive damages was limited in
both cases, however, to determining whether damages for aggravating circumstances are
subject to due process considerations. Id.; Bennett, 896 S.W.2d at 465-66. The limited
context of these holdings does not support the broad conclusion that our courts have
defined "punitive damages" to include "aggravating circumstance damages" as a matter
of law.
We are mindful that "'the legislature is presumed to know the existing law when
enacting a new piece of legislation." State ex rel. Nothum v. Walsh, 380 S.W.3d 557, 567
(Mo. banc 2012). This principle actually mitigates in favor of our conclusion that section
510.265 was not intended to include aggravating circumstances damages within its scope.
Subsection 510.263.7 effectively codified the limited holdings in Call and Bennett by
defining "punitive damage awards" to include "aggravating circumstance damages" for
trial procedure purposes, including remittitur motions requiring the assessment of
punitive damages award by "the totality of the surrounding circumstances," a due process
consideration. The failure to include the same definition for "punitive damages" in
section 510.265 or to otherwise reference aggravating circumstances suggests a
57
purposeful intent to exclude aggravating circumstances damages from the scope of
section 510.265.
Our conclusion recognizes, and affords appropriate deference to, the fact that a
wrongful death action is purely a creature of statute. Sanders, 364 S.W.3d at 203. The
Wrongful Death Act, sections 537.080-537.100, was designed to "mend the fabric of the
common law, not to weaken it." O'Grady v. Brown, 654 S.W.2d 904, 908 (Mo. banc
1983). Though the legislature was plainly familiar with the term "punitive damages"
when it enacted the wrongful death statute, it elected to use the phrase "aggravating
circumstances" to define damages that could be awarded in addition to compensatory
damages. We are required to attach significance to that choice in verbiage. It is not for
this court to summarily conclude that "aggravating circumstance awards" and "punitive
damages" are statutory synonyms.
Instead, "we must . . . apply the statutory language [in the wrongful death statute]
'with a view to promoting the apparent object of the legislative enactment.'" Id. (quoting
United Airlines v. State Tax Comm'n, 377 S.W.2d 444, 451 (Mo. banc 1964)). The
Wrongful Death Act has three objectives: "to provide compensation to bereaved plaintiffs
for their loss, to ensure that tortfeasors pay for the consequences of their actions, and
generally to deter harmful conduct which might lead to death." Id. at 909. The last
objective is the focus of section 510.090's allowance for aggravating circumstance
damages: to deter harmful conduct which might lead to death. It is logical and sound that
the legislature viewed conduct leading to death as worthy of more serious consequence
than other conduct. If section 510.265 is construed to apply to damages for aggravating
58
circumst
tances with
hout a plain and cle legislati
ear ive directiv to do s we wil be
ve so, ll
temperin the mean by which an objecti of sectio 510.090 is met. More to the p
ng ns h ive on point,
we will be effectiv
vely modif
fying a sta
atutory caus of actio includin the dam
se on, ng mages
expressly authorize by the le
ed egislature fo that caus of action Sanders, 364 S.W.3 at
or se n. , 3d
203 ("Th legislatu has the power to de
he ure p efine the re
emedy avail
lable if it creates the c
cause
of action."). In fact, it is noteworthy and contro
fa n olling that where the legislature has
e
intended to limit the damages recoverable under the wrongful d
d e death statute it has don so
e, ne
expressly. See sect
tion 538.210 (limiting non-econom damages in action against h
mic ns health
care providers "for personal in
njury or dea
ath") (emph
hasis added)
).
Accordingly the Horne ninth po on appe is denied
A y, ers' oint eal d.
Co
onclusion
The Judgment of the tri court is affirmed.
T ial a
___________________ __________
_________
Cynthia L. Martin, Ju
udge
cur
All conc
59