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869 S.W.2d 219

Reno v. Wakeman

Missouri Court of Appeals

Decided December 17, 1993

Missouri Court of Appeals · decided 1993-12-17

Cited by 7 later decisions — most recently February 2019

7 state decisions

Relies on Rowe v. Farmers Ins. Co., Inc. · Kummer v. Cruz · State Ex Rel. State Highway Commission v. Davis

Good law ✅— No negative treatment on recordhow we know

Decided 1993-12-17

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PARRISH, Chief Judge,

¶1concurring.

¶2I concur in the result reached. I write separately, however, because of the emphasis the principal opinion places on the holding in Rowe v. Farmers Ins. Co., 699 S.W.2d 423, 428 (Mo. banc 1985), that permitted substantive use of prior inconsistent statements in civil cases when a declarant is available for cross-examination.

¶3The principal opinion concludes that the trial court erred in not allowing Dr. Had-*226doVs testimony to be challenged by statements included in his earlier deposition testimony. The principal opinion states two reasons for reversing the trial court’s judgment based upon the disallowance of that deposition testimony: (1) the deposition testimony was substantive pursuant to Roweand its progeny of later Missouri cases and “went to the very root of the matter in controversy”; and (2) the deposition testimony was inconsistent with the trial testimony regarding a paramount issue in the case and, therefore, should have been admitted as a means of impeaching Dr. Haddow’s trial testimony.

¶4I agree that the trial court committed error by not allowing Dr. Haddow to be questioned regarding the prior inconsistent deposition testimony. I further agree that this error is reversible because, as I perceive the record on appeal, other than defendant, Dr. Haddow is the only expert who testified that the unwarranted injuries Mrs. Reno sustained by reason of medical treatment (or lack of treatment) were caused exclusively by the biopsy performed by Dr. Norgard. For that reason, I believe the credibility of Dr. Haddow is of such importance that the error materially affected the merits of the action. See Rule 84.13(b). I find its import similar to the impeachment testimony that required reversal in State ex rel. Highway Comm’n v. Davis, 466 S.W.2d 172 (Mo.App.1971).

¶5I do not agree that any substantive value of the prior inconsistent statements Dr. Had-dow gave in pretrial deposition was so material that it would warrant reversal. Other expert witnesses testified contrary to Dr. Haddow. Any substantive value of the deposition testimony does not, in my opinion, - rise to the level of the inconsistent statements of witnesses in Rowe v. Farmers Ins. Co., supra, or in Rummer v. Cruz, 752 S.W.2d 801 (Mo.App.1988).

¶6I concur in the result reached.. I do not concur in the principal opinion’s conclusion that any substantive affect of the disallowed deposition testimony would have materially affected the merits of plaintiffs action.

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