In the 

Missouri Court of Appeals

Western District

SHANISHA L. SAULSBERRY,

Appellant,

v.

U.S. TOY COMPANY, INC.,

Respondent.

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WD77562

ORDER FILED: 

AUGUST 11, 2015

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable David Michael Byrn, Judge

Before Division Three: Karen King Mitchell, P.J., Thomas H. Newton, and Anthony Rex 

Gabbert, JJ.

Shanisha L. Saulsberry appeals the circuit court’s judgment entered upon a jury verdict 

finding in favor of Saulsberry on her negligence claim against U.S. Toy Company, Inc. (U.S. 

Toy). Saulsberry alleged that she was injured at a U.S. Toy store after store racks fell upon her. 

The jury awarded Saulsberry $7,216.00 for economic damages. Saulsberry asserts five points on 

appeal. First, she claims that the circuit court erred in excluding evidence of her medical 

expenses because they were relevant to damages and admissible as business records and she was 

not responsible for any late production of the records in that any “discovery sanctions” neither 

followed the dictates of Rule 61’s mandated notice and hearing provisions nor advanced the 

purposes of deterrence of discovery abuse by penalizing Saulsberry rather than Saulsberry’s 
2

lawyer. Second, Saulsberry contends that the circuit court erred in not conducting an evidentiary 

hearing pursuant to Section 490.715, RSMo Cum. Supp. 2013, and Deck v. Teasley, 322 S.W.3d 

536 (Mo. banc 2010), because Saulsberry had witnesses who could have laid a proper foundation 

and described the reasonable value of their services in that the statute by its plain language 

permits a party to testify about their own medical expenses, and medical experts had testified to 

the reasonable value of the services. Third, Saulsberry contends that the circuit court erred in 

admitting, over her objection, the hearsay testimony of Dr. Jay Zwibelman, because the 

testimony reflected the opinion of counsel about rank hearsay, did not come in the form of an 

opinion, and was an unduly prejudicial comment on Saulsberry’s motives in bringing the lawsuit 

in that the witness was reading another physician’s note about which he had no personal 

knowledge and that reflected another person’s opinion, and he was not expressing his opinion to 

a reasonable degree of medical certainty. Fourth, Saulsberry contends that the circuit court erred 

in admitting, over her objection, the hearsay testimony of Dr. Bernard Abrams because the 

testimony was inherently speculative, not given to a reasonable degree of medical certainty and 

was an unduly prejudicial comment on Saulsberry’s motives in bringing the lawsuit in that the 

witness was merely listing a number of factors that could have been responsible for Saulsberry’s 

inability to walk, and was not expressing an opinion to a reasonable degree of medical certainty. 

Finally, Saulsberry contends that the circuit court erred in refusing to admit the economist’s 

report because the economist’s report was based on the lifecare planner’s report which had firm 

evidentiary support, in that the trial court had redacted portions of the lifecare planner’s report 

based on its earlier errant rulings and this erroneous redaction made the economist’s report which 

was otherwise admissible, inadmissible resulting in prejudice to plaintiff. We affirm.
3

Factual and Procedural Background

On October 18, 2008, Saulsberry was shopping at a U.S. Toy store when store racks filled 

with Halloween costumes fell upon her. Saulsberry filed a negligence suit against U.S. Toy on 

October 6, 2010, claiming to have sustained permanent injuries, including being confined to a 

wheelchair as a result of the incident and U.S. Toy’s negligence. She first attempted to litigate 

the suit pro se, however counsel entered an appearance on Saulsberry’s behalf on September 23, 

2011. A trial was scheduled for January 23, 2012. After Saulsberry’s counsel moved to continue 

the trial, the case was scheduled for May 21, 2012. On May 18, 2012, Saulsberry moved to 

voluntarily dismiss the case and the court granted that dismissal. 

On October 18, 2012, Saulsberry refiled her suit. On February 23, 2013, the case was set 

for jury trial on January 6, 2014. On December 27, 2013, new counsel entered an appearance on 

Saulsberry’s behalf. On December 31, 2013, Saulsberry filed a motion for continuance and later 

that same day filed a supplemental motion for continuance. Saulsberry’s former counsel also 

requested leave to withdraw. On January 2, 2014, the court denied the continuance as well as the 

motion to withdraw. On January 6, 2014, the day of trial, the court revisited Saulsberry’s 

supplemental motion for a continuance as Saulsberry was unavailable. The court continued the 

trial to January 21, 2014.

After hearing approximately three days of evidence, the jury returned a verdict against 

U.S. Toy and in favor of Saulsberry. The jury was instructed that, if it found U.S. Toy negligent 

and that such negligence caused damage to Saulsberry, the jury must award Saulsberry such sum 

as it believed would fairly and justly compensate Saulsberry for any damages that the jury 

believed were sustained by Saulsberry and would be reasonably certain to sustain in the future as 
4

a direct result of the negligence. The jury awarded Saulsberry $7,216 for economic damages. 

Saulsberry appeals arguing that we must remand for a new trial for reconsideration of 

Saulsberry’s damages.

Point I: Exclusion of Evidence

In Saulsberry’s first point on appeal she claims that the circuit court erred in excluding 

evidence of her medical expenses because they were relevant to damages and admissible as 

business records and she was not responsible for any late production of the records in that any 

“discovery sanctions” neither followed the dictates of Rule 61’s mandated notice and hearing 

provisions nor advanced the purposes of deterrence of discovery abuse by penalizing Saulsberry 

rather than Saulsberry’s lawyer. 

‘“We review the trial court’s admission or exclusion of evidence under a deferential 

standard of review.”’ McGuire v. Kenoma, LLC, 375 S.W.3d 157, 183-184 (Mo. App. 2012) 

(quoting Ziolkowski v. Heartland Regional Medical Center, 317 S.W.3d 212, 216 (Mo. App. 

2010)). ‘“On appellate review, the issue is not whether the evidence was admissible, it is 

whether the trial court abused its discretion in excluding the evidence.”’ Id. “A circuit court has 

broad discretion in determining the admission of evidence and imposing sanctions for discovery 

violations.” Lewellen v. Franklin, 441 S.W.3d 136, 149 (Mo. banc 2014). A court abuses its 

discretion only where the court’s ruling is “clearly against the logic of the circumstances and is 

so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful 

consideration.” State v. Johnson, 207 S.W.3d 24, 40 (Mo. banc 2006). “If reasonable persons 

may differ as to the propriety of an action taken by the trial court, then there was no abuse of 

discretion.” State v. Quick, 334 S.W.3d 603, 609 (Mo.App.2011) (citing State v. Reed, 282 
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S.W.3d 835, 837 (Mo. banc 2009)). “Even if there is an error, this [c]ourt will not reverse a 

judgment unless the erroneous sanction resulted in prejudice.” Lewellen, 441 S.W.3d at 149. 

With regard to the evidence that Saulsberry argues was erroneously excluded, the record 

reflects that on May 8, 2013, U.S. Toy filed an Amended Second Motion to Enforce Discovery 

and Suggestions in Support pursuant to Rule 61.01 and Local Rule 32.2.4. Therein, U.S. Toy 

alleged that Saulsberry’s response was incomplete with regard to Interrogatory No. 9 which U.S. 

Toy contended was a Jackson County approved interrogatory. The interrogatory asked 

Saulsberry to “[i]temize any special damages other than lost earnings which you claim” 

including doctor bills, hospital bills, drugs, and other special damages. Saulsberry’s response to 

this interrogatory stated: “Hospital Bills: $1,114,876.40 (Does not include bills for the year 

2012-2013)”; “Drugs: $10,949.23.” U.S. Toy argued that, although a compact disk (CD) had 

been provided that included some bills and some records, the bills did not total the amount 

claimed and some providers on the disk did not appear with the doctors Saulsberry named in 

Interrogatory No. 11. 

In response to U.S. Toy’s motion, Saulsberry contended that, by listing the cost for each 

category of bills, Saulsberry had complied with the interrogatory and further stated:

[T]he documents produced provide the information from which Plaintiff’s 

medical providers and the medical bills can be gleaned which makes the motion 

nonsensical. . . . This amended motion for enforcing discovery is frivolous 

because the medical invoices produced by Plaintiff itemize the services that 

Plaintiff received which are essentially what Interrogatory No. 9 is requesting. . . . 

Plaintiff provided all the medical bills for the service providers between 2008-

2011. There is no real genuine discovery issue other than Defendant through its 

counsel insists on litigating this case in a cantankerous, rancorous manner. . . . 

The Defendant has all the invoices for medical services provided to the Plaintiff. 

The invoices list the provider and services rendered, as such Plaintiff has fully 

answered Interrogatory 9.
6

On July 23, 2013, the court considered U.S. Toy’s motion to enforce discovery and, based 

upon Saulsberry’s averments that all bills and records relating to Interrogatory No. 9 had been 

included on the CD provided to U.S. Toy, the court indicated that although Interrogatory No. 9 

appeared insufficient on its face, “Plaintiff shall be bound by the extent of her 

disclosures/responses to discovery which are contained on the CD.” Five months later, on 

January 3, 2014 and the Friday before trial was to begin the following Monday on January 6, 

Saulsberry attempted to supplement her discovery with additional medical records and bills.1 

After the trial was continued for Saulsberry’s unavailability, Saulsberry again supplemented her 

discovery. 

At trial the parties discussed the admissibility of the supplemented records. Saulsberry 

claimed that the supplementation should be admissible because “[p]rior to that time, the plaintiff 

did not have possession of those records and did not have control over those records.” When the 

court questioned Counsel about Saulsberry not having control over her own medical records, 

Counsel responded, “Well, certainly, she could have requested them, just ....” Counsel indicated 

that Saulsberry had provided a signed release that would have allowed U.S. Toy to obtain the

records. The court inquired of Saulsberry’s counsel: “Is there a claim by the plaintiff that the 

additional information was otherwise made known to defendant during discovery? Are you 

claiming that was done? I’m using the words of the rule in asking the question.” Counsel 

responded that the nature of Saulsberry’s injury indicated ongoing treatment due to a chronic 

condition. Further, because U.S. Toy had a release of information, it changed Saulsberry’s 

“responsibility to affirmatively get the records.”

 

1This supplementation has not been provided in the record on appeal.
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U.S. Toy argued that the supplementation was unseasonable as the initial response was 

given in June of 2013 and, therefore, everything up to that date should have been provided and it 

was not. U.S. Toy contended that it relied on the discovery that was returned and, as a result, did 

not depose Saulsberry after obtaining her initial deposition because there were no additional 

topics to cover. U.S. Toy contended that it would be prejudiced by now having to address nearly 

a million dollars of medical bills that it had never been provided. 

The court concluded that the supplementation that was provided two days before the 

scheduled January 6, 2014, trial was unseasonable and prejudicial to U.S. Toy. The court further 

concluded that the supplementation that was provided after the trial was scheduled to commence,

but was delayed for the sole reason that Saulsberry was unavailable, would not have existed had 

the trial moved forward as scheduled and was also unseasonable. The court excluded testimony 

as to those records. The court indicated, however, that if a witness of U.S. Toy had reviewed any 

of the excluded records and testified regarding those, the court might reconsider its ruling as it 

pertained to prejudice.

On appeal, Saulsberry argues that the trial court erred because the exclusion of medical 

expense evidence prevented the case from being heard on the merits and “the incredibly low 

verdict in comparison to the life-altering injuries, demonstrate a need for appellate oversight and 

correction.” Saulsberry also contends that the court acted under the erroneous belief that the 

predicate for sanctions under Rule 61 had occurred when it excluded the evidence. Saulsberry 

justifies non-seasonable supplementation of the discovery by arguing that the interrogatory 

request by U.S. Toy was generic and did not use language that would have captured lateroccurring medical data.
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With regard to Saulsberry’s claim that the interrogatory was generic, we note that the 

interrogatory specifically asked for any special damages being claimed and requested itemized 

statements from doctors regarding such claims. If Saulsberry expected to recover specific 

damages, it was only reasonable that Saulsberry must also expect to seasonably provide notice of 

those damages through supplementation.

Further, upon review of the record we find it unlikely that the court excluded the 

evidence because it was acting under an erroneous belief that the predicate for sanctions under 

Rule 61 had occurred. While the record reflects that the court made a comment stating that it 

“allowed the motion to enforce discovery,” and it had actually denied U.S. Toy’s motion and 

instead mandated that Saulsberry be bound by the content of the provided CD, the court’s focus 

in the discussion surrounding that statement is that Saulsberry had contended that the CD 

contained all of her bills and records and the court had accepted that. Never did the court 

indicate that Saulsberry was in violation of any order to enforce discovery. The record is clear 

that the court rendered its decision based on the previous averments made by Saulsberry and her

attempt two days prior to the scheduled hearing to add additional medical expenses that she 

intended to claim as damages. 

We note that Rule 61.01(b) allows the court to make such orders as are just if a party fails 

to answer interrogatories.2 Rule 56.01(e) requires seasonable supplementation of interrogatory 

responses. “The trial court has broad discretion to control discovery.” Wilkerson v. Prelutsky, 

943 S.W.2d 643, 647 (Mo. banc 1997). “This discretion extends to the trial court’s choice of 

remedies in response to the non-disclosure of evidence or witnesses during discovery.” Id. at 

 

2Rule 61.01(d)(1) allows the court to prohibit a party that fails to produce documents and tangible things 

from introducing designated matters into evidence. 

 
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647-648. Here, however, the court’s decision to exclude the evidence appears more as 

enforcement of a previous order based on an averment made by Saulsberry and prejudice that 

would result to U.S. Toy if Saulsberry was not held to that averment, than a sanction for 

discovery violations.3 Nevertheless, insofar as it could be considered such, we will not address 

Saulsberry’s claims that the court did not follow the dictates of Rule 61. Saulsberry did not make 

any such claim in her motion for new trial and, therefore, has failed to preserve such claims for 

review. “[A]llegations of error not presented to or expressly decided by the trial court shall not 

be considered in any civil appeal from a jury tried case.” Rule 84.13(a). 

We find no abuse of discretion. Given Saulsberry’s previous stance on supplementing the 

interrogatory, the court was well within its discretion to exclude evidence included in 

supplementation provided two days before trial and after trial was to have commenced. Point 

one is denied. 

Point II: Evidentiary Hearing

In Saulsberry’s second point on appeal she contends that the circuit court erred in not 

conducting an evidentiary hearing pursuant to Section 490.715, RSMo Cum. Supp. 2013, and 

Deck v. Teasley, 322 S.W.3d 536 (Mo. banc 2010), because Saulsberry had witnesses who could 

have laid a proper foundation and described the reasonable value of their services in that the 

statute by its plain language permits a party to testify about their own medical expenses, and 

medical experts had testified to the reasonable value of the services. Saulsberry argues that the 

court erred in both interpreting and applying Section 490.715. She contends that a hearing on the 

 

3We note that Saulsberry does not contend that the court erred in denying U.S.Toy’s motion to enforce 

discovery and denying U.S. Toy’s request to require her to supply more bills and records. Saulsberry likewise does 

not contend that, in so denying U.S. Toy’s motion, the court erred in ordering her bound by the extent of her 

disclosures and responses to discovery that was contained on the CD.
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issue of collateral sources is required pursuant to Section 490.715. She maintains that, because 

the court never heard any evidence and determined the value of medical services based on the 

argument of counsel “and what counsel intended to offer, the court omitted the key step required 

by the statute.” We find no error.

Section 490.715.5 provides:

(1) Parties may introduce evidence of the value of the medical treatment rendered 

to a party that was reasonable, necessary, and a proximate result of the 

negligence of any party.

(2) In determining the value of the medical treatment rendered, there shall be a 

rebuttable presumption that the dollar amount necessary to satisfy the 

financial obligation to the health care provider represents the value of the 

medical treatment rendered. Upon motion of any party, the court may 

determine, outside the hearing of the jury, the value of the medical treatment 

rendered based upon additional evidence, including but not limited to: 

(a) The medical bills incurred by a party; 

(b) The amount actually paid for medical treatment rendered to a party; 

(c) The amount or estimate of the amount of medical bills not paid which 

such party is obligated to pay to any entity in the event of a recovery.

In Deck v. Teasley, the Missouri Supreme Court held that Section 490.715 creates a 

rebuttable presumption that the dollar amount paid to satisfy the financial obligation to a health 

care provider is the value of the medical treatment rendered, however, when substantial evidence 

is submitted rebutting that presumption, the case must be decided on the basis as if no 

presumption existed. 322 S.W.3d at 539. If the presumption is rebutted, it disappears. Id. 

“However, the facts that gave rise to the presumption remain in the case and along with the facts 

to the contrary, are considered by the fact-finder like any other evidence.” Id. “A presumption 

places the burden of producing substantial evidence to rebut the presumed fact on the party 

against whom the presumption operates.” Id. 
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We review questions of statutory interpretation de novo. Ivie v. Smith, 439 S.W.3d 189, 

202 (Mo. banc 2014). Our primary rule of statutory interpretation is to give effect to legislative 

intent as reflected in the plain language of the statute at issue. Id. Saulsberry contends that the 

most important language of the foregoing statute is that the court must determine the value of the 

medical treatment “outside the hearing of the jury.” She contends that this language means that 

there must be a hearing.

We disagree that the legislature intended “outside the hearing of the jury” to mean that 

the court is required to conduct a hearing. The statute simply requires by its plain language that 

any evidence that is presented to the court pursuant to the statute shall be presented outside the 

presence of the jury. Further, we find nothing within the statute that requires a hearing where, as 

here, the proponent of the hearing has no evidence to introduce that would be admissible at trial. 

The court did not refuse a Deck hearing. Upon request for the Deck hearing, however, the court 

painstakingly reviewed the evidence that Saulsberry intended to introduce and had a frank 

discussion with Counsel, outside the hearing of the jury, that the evidence that Saulsberry 

intended to present at a Deck hearing would be inadmissible at trial, either because it had been 

excluded as untimely or because there was no proper foundation for its admittance. The record 

reflects that Counsel appeared to understand but, nevertheless, argued: 

But on the other hand, we do want to make a record that if there was a 

Deck hearing that was allowed to go beyond the scope that you just outlined, we 

would submit to the Court testimony from Ms. Saulsberry about bills that she 

receives in the mail. And we would go through those bills in a very tedious 

fashion and refresh her recollection on those bills that she received and about her 

personal knowledge regarding the fact that those bills have been paid in order to 

introduce additional evidence of the reality of the damages that she’s incurred. 

In response, the court confirmed with Counsel the evidence Saulsberry intended to 

present at a Deck hearing. Counsel indicated that it was limited in its ability to present evidence 
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based on previous counsel’s failure to provide business record affidavits with some of the records 

as well as excluded evidence based on untimely supplementation. However, Counsel indicated

that Saulsberry would present testimony from Saulsberry herself that the medical services she

received were customary, reasonable, and necessary and that the bills and charges were 

reasonable. Counsel further indicated that Saulsberry intended to present testimony from Sheryl 

Bunce, a nurse who had already testified regarding a life care plan she established for Saulsberry. 

Finally, Counsel indicated that Saulsberry intended to present testimony from a legal secretary

who had summarized Saulsberry’s bills on a medical damage chart. 

After hearing an explanation of the evidence Saulsberry intended to present, the court 

explained that Section 490.715 itself does not independently meet the foundational requirements 

for the admission of medical records and that the foundational requirements still must be met in 

order for records to be admitted into evidence at trial. The court explained:

To the extent, at a Deck hearing, if there is no foundation that is going to be laid 

for the records, in other words, if you don’t intend to bring a medical records 

custodian in and lay an independent foundation for records, there is, in my 

opinion, no point in addressing that at a Deck hearing, because I could hear 

whatever evidence you present at a Deck hearing. But if you don’t then lay the 

foundation for records coming in, what’s the point?

The court indicated that Saulsberry could not testify that the medical expenses were

reasonable, customary, or necessary such that she could lay the foundation for admission of the 

medical expenses incurred. The court stated that testimony from the legal secretary who 

compiled and charted Saulsberry’s medical bills and expenses would have little value as, having 

no medical background or expertise, she could only testify that she compiled a summary of 

Saulsberry’s bills. As to Bunce, the court indicated that the court was aware of what Bunce’s 

testimony would be, as Bunce had already testified. The court stated that Bunce had testified to 
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some extent that the medical treatment was necessary but she also deferred to doctors and others 

in her testimony and Bunce is not a physician. 

Thus, it is clear from the record that the court’s conclusion that Saulsberry’s intended 

evidence was inadequate to rebut the presumption set forth in Section 490.715.5(2) was not 

based on the court erroneously weighing competing evidence as Saulsberry contends in her brief, 

but rather the court’s recognition that evidence that was inadmissible could not be legitimized via 

a Deck hearing. Upon review of the record, we conclude that the court did not err in failing to 

conduct an evidentiary hearing pursuant to Section 490.715 and Deck v. Teasley. A plain reading 

of Section 490.715 does not unequivocally require a hearing and we find no hearing necessary 

where the only evidence intended to be submitted at the hearing is not admissible at trial. Point 

two is denied.

Point III: Testimony of Dr. Jay Zwibelman

In her third point on appeal, Saulsberry contends that the circuit court erred in admitting, 

over her objection, the hearsay testimony of Dr. Zwibelman, because the testimony reflected the 

opinion of counsel about rank hearsay, did not come in the form of an opinion, and was an 

unduly prejudicial comment on Saulsberry’s motives in bringing the lawsuit in that the witness 

was reading another physician’s note about which he had no personal knowledge and that 

reflected another person’s opinion, and he was not expressing his opinion to a reasonable degree 

of medical certainty. We find no error.

We review the trial court’s decision to admit evidence for abuse of discretion. Beaty v. St. 

Luke’s Hosp. of Kansas City, 298 S.W.3d 554, 558 (Mo. App. 2009). “We defer to the trial 

court’s determination of admissibility because it is in a superior position to evaluate the proffered 

evidence in the context of the trial.” Id. (internal quotation and citation omitted). To reverse for 
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the erroneous admission of evidence, we must find that the admission prejudicially affected the 

merits of the appellant’s action. Id. 

Saulsberry does not dispute that the medical record from which Zwibelman derived his 

testimony was in Exhibit 113 which was offered into evidence by Saulsberry. In her reply brief, 

Saulsberry contends that the record was only offered by her in response to a ruling by the trial 

court. It is unclear what ruling Saulsberry references. Saulsberry presented the exhibit during 

her case in chief when Dr. Cielo Navaro-Dehning, designated by Saulsberry as an expert witness, 

testified. Counsel for Saulsberry asked Dehning to review records covering when Saulsberry 

was admitted to Overland Park Regional and asked Dehning to note the doctors that the records 

reflected were involved in treating Saulsberry. After Dehning testified to the various doctors that 

Saulsberry encountered and services that were rendered based on Exhibit 112, Dehning was 

asked if “there is any better document that we could look at that would tell us which doctors 

examined [Saulsberry] while she was at Overland Park after this occasion?” Dehning responded: 

“I would say the consultation report is in the chart, progress notes and such.” Counsel for 

Saulsberry asked Dehning to identify Exhibit 113. Dehning testified that Exhibit 113 contained

progress notes written by various doctors who treated Saulsberry. It appears from the transcript 

that Dehning testified extensively regarding various notes recorded by various doctors in Exhibit 

113.

4

 On cross-examination, Dehning was asked about a note in the record “from the psych 

fellow.” Counsel stated: “And it refers to secondary gain. Could you tell the jury what 

 

4We note that Exhibit 113 is not included in the record provided on appeal to allow us to compare the 

exhibit with Dehning’s testimony. “It is the appellant’s burden to supply the record necessary for our review.” R.K. 

Matthews Inv., Inc. v. Beulah Mae Housing, LLC, 379 S.W.3d 890, 892 n.2 (Mo. App. 2012) (internal quotation and 

citation omitted). “Where exhibits are not made a part of the record on appeal, such evidentiary omissions will be 

taken as favorable to the trial court’s ruling and unfavorable to the appeal.” Id. (internal quotation marks and 

citations omitted).
15

secondary gain is?” Saulsberry’s counsel objected and the court overruled the objection. The 

testimony continued and Dehning testified that secondary gain refers to a patient doing 

something or presenting in a way so that they can get money or some sort of compensation. 

Dehning also testified that she saw a reference in the record to a lawsuit regarding U.S. Toy. 

Saulsberry does not appeal the admission of this testimony. 

Later in Dehning’s cross-examination, Dehning testified to notes from doctors at her 

hospital indicating that Saulsberry herself was requesting multiple imagery studies. These notes 

were introduced in Exhibit 712 by U.S. Toy. Dehning testified that a Dr. Arkin had noted in the 

record that “spasms” of Saulsberry’s legs appeared voluntary and were not present until about 

thirty minutes into the doctor’s visit. Dehning also testified that in the last sentence of the record 

Dr. Arkin states: “She has extensive secondary gain, not to mention probably litigation 

involved.” Dehning testified that, although other doctors in her facility believed that secondary 

gain may have contributed to Saulsberry’s expressed symptoms, Dehning did not agree. The 

record reflects that Saulsberry also voluntarily broached the topic of secondary gain with her 

testifying expert, Delbert Reece.5 

Zwibelman’s deposition testimony, which Saulsberry herein argues was erroneously 

admitted into evidence and was prejudicial because it discussed secondary gain, was presented 

 

5Counsel for Saulsberry asked Reece several questions related to customary information that a doctor might 

include in a patient’s records. Counsel asked Reece if it was within his realm of understanding that there may be a 

request by a patient for compensation from some other person for the harms that have been caused them. Counsel 

asked, “And so, you’ve heard of the term, perhaps you have, secondary gain?” The doctor indicated that he was 

aware of what secondary gain was and Counsel asked the doctor if he had an opinion on secondary gain. The doctor 

replied: “I think it is when somebody is trying to manipulate the circumstances where they get something, usually 

financial, that really is not appropriate for the circumstances.” Counsel then asked Reece if he had had an 

opportunity to review the testimony in some of the depositions in Saulsberry’s case. The doctor replied that he had 

not and the discussion regarding secondary gain ended. 
16

last at trial. In his deposition, Zwibelman reads what he believes to be the content of a note

contained in Exhibit 113. The contested testimony from Zwibelman is as follows:

U.S. TOY COUNSEL: I’m going to show you a note that’s dated the next 

day, October 25. It mentions there – I’m trying to figure out if you can read that. 

It refers to secondary gain. What is that?

ZWIBELMAN: Secondary gain would be the term used if somebody’s 

actions or behaviors are being – are a result of – they get something because of it. 

Somebody might feign an injury if they feel they could get a reward out of it, for 

example. Somebody might get attention by acting like they’re sick. Those would 

be examples of secondary gain.

U.S. TOY COUNSEL: All right. Now, there’s a reference there to a 

lawsuit at U.S. Toy. Can you read that for me? . . .

ZWIBELMAN: Let’s see if I can read it. Wants to return home. That’s 

number 1. Number 2, the first word, I cannot read, then something placed by 

lawsuit at U.S. Toy, but I don’t know – or legal. Legal hyphen want to placed 

something lawsuit at U.S. Toy, and then there’s a word in parentheses, and I don’t 

know what it says. ...

U.S. TOY COUNSEL: All right. So from what you can tell in that, one 

week after that accident, there’s references then to a lawsuit against U.S. Toy and 

secondary gain; is that right?

ZIBELMAN: That’s what he’s alluding to in that note.

Saulsberry asserts that she made a timely motion to strike Zwibelman’s opinion related to 

secondary gain, and expanded that objection in her Motion in Limine and Trial Brief. In 

reviewing the record, we find that the court addressed Counsel’s Motion in Limine from the 

bench. The court indicated that the court had read the deposition excerpt and, in considering the 

probative value versus the prejudicial effect, concluded that the jury could consider the weight of 

Zwibelman’s testimony as well as Counsel’s associated conclusory question. The court noted 

that the jury “could draw conclusions from that question in context with the prior questions, as to 

whether or not the witness, in reading the note, himself reached the same conclusion.” 
17

Upon review of the record, we disagree with Saulsberry’s contention that U.S. Toy 

“sought to admit this as the ‘opinion’” of Zwibelman. The content of the testimony makes it 

clear that Zwibelman was merely attempting to decipher another doctor’s note in the record. 

Although not transcribed here for the sake of brevity, from the record there appears to be some 

initial confusion by counsel for U.S. Toy as to whether Zwibelman was the author of the note. 

As we have not been provided Exhibit 113 on appeal, we cannot determine if this confusion was 

justified. 

Even if Saulsberry could prove that Zwibelman’s testimony should have been excluded, 

she fails to prove prejudice. Saulsberry herself admitted Exhibit 113 into evidence. The jurors 

had the opportunity to examine the exhibit and reach their own conclusions as to the value of its 

content. The fact that the attorney, and not Zwibelman, used the term “secondary gain” to 

reference the content of the note cannot be proven prejudicial as the term “secondary gain” had 

been described and discussed at trial by both of Saulsberry’s experts before Zwibelman’s 

testimony was ever admitted. We find that the circuit court did not abuse its discretion in 

admitting the testimony of Dr. Zwibelman.6 Point three is denied.

Point IV: Testimony of Dr. Bernard Abrams

In her fourth point on appeal, Saulsberry contends that the circuit court erred in 

admitting, over her objection, the hearsay testimony of Dr. Bernard Abrams because the 

testimony was inherently speculative, not given to a reasonable degree of medical certainty and 

was an unduly prejudicial comment on Saulsberry’s motives in bringing the lawsuit in that the 

 

6

Saulsberry argues in her reply brief that, because Zwibelman never read the words “secondary gain” in 

response to the question presented, his answer was thus unresponsive and irrelevant and should have been excluded 

from evidence. We decline to address this argument raised for the first time on appeal.
18

witness was merely listing a number of factors that could have been responsible for Saulsberry’s 

inability to walk, and was not expressing an opinion to a reasonable degree of medical certainty. 

We find that Saulsberry has failed to preserve this claim.

The disputed “testimony” to which Saulsberry refers appears to be derived from a 

deposition excerpt of Abrams that Saulsberry attached to her Plaintiff’s Trial Brief. In that brief,

Saulsberry argued that testimony regarding Saulsberry’s alleged motive to exaggerate or respond 

untruthfully should be excluded as speculative, highly prejudicial, and as invading the province 

of the jury. Saulsberry argued that Abrams’s testimony should be excluded because Abrams had 

questioned the legitimacy of the Saulsberry’s symptoms and had discussed the issue of 

“secondary gain.” 

A review of the record reveals that Abrams’s deposition was never admitted at trial. 

Saulsberry references it in her appellate brief as being located at page 972 of the legal file; page 

972 of the legal file is part of Saulsberry’s pre-trial brief. The transcript reflects that Abrams 

testified in person at trial and that Saulsberry objected to none of Abrams’s testimony. Abrams 

testified that all of his opinions were given with a reasonable degree of medical certainty. On 

appeal, Saulsberry points to no evidence at trial or testimony by Abrams at trial that was 

objectionable. All of Saulsberry’s complaints appear to stem from comments Abrams made in 

the deposition that was never put before the jury. 

We find that, even if Abrams testified to something at trial that Saulsberry now finds 

objectionable, she failed to preserve her claims for appellate review by failing to object at trial

and failing to include any objections in her motion for new trial. “[A]llegations of error not 

presented to or expressly decided by the trial court shall not be considered in any civil appeal 

from a jury tried case.” Rule 84.13(a). Point four is denied.
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Point V: Economist’s Report

In Saulsberry’s final point on appeal, she contends that the circuit court erred in refusing 

to admit the economist’s report because the economist’s report was based on the lifecare 

planner’s report which had firm evidentiary support, in that the trial court had redacted portions 

of the lifecare planner’s report based on its earlier errant rulings and this erroneous redaction 

made the economist’s report which was otherwise admissible, inadmissible resulting in prejudice 

to Saulsberry. 

In reviewing Saulsberry’s argument, we find that her main contention is that “the court’s 

earlier rulings on the admissibility of medical records created cumulative error” that affected her

ability to admit the economist’s report and “spilled over and infected the fairness of the trial.” 

Saulsberry, in effect, contends that it was impossible for the jury to return a verdict of only 

$7,491.09 after concluding that Saulsberry was damaged by U.S. Toy’s negligence without there 

being court error. We disagree. 

As we have found no “earlier errant rulings” by the court, we cannot conclude that the 

effect of any evidentiary rulings on the lifecare planner’s report and the economist’s report was 

cumulative error. Further, despite Saulsberry’s complaints regarding her inability to enter 

evidence regarding damages, the record reflects that she presented a significant amount of 

evidence regarding damages at trial. Although the economists report may have been rejected

because items were contained therein for which no foundation had been established, the 

economist, Kurt Krueger, still directly testified as to various categories of future medical costs

for which there was a foundation: physician care, $154,756; psychological care, $12,595; 

supportive care, $2,921,249; Craig Hospital, $75,757; medications, $3,552,835; laboratory and 
20

diagnostics, $122,711; medical supplies, $19,371; assistive devices, $73,965; transportation, 

$122,730, and home modification, $161,000. Additionally, Sheryl Bunce testified that she 

determined through Saulsberry’s life care plan that the estimated dollar figure for Saulsberry’s 

required care was $6,503,207.00. Bunce separated Saulsberry’s various needs into categories

and testified to projected expenditures for each category.

“The plaintiff bears the burden to prove that the defendant was negligent and that the 

injuries directly resulted from the defendant’s negligence.” Giles v. Riverside Transport, Inc., 

266 S.W.3d 290, 300 (Mo. App. 2008) (internal quotations and citations omitted). While 

Saulsberry presented evidence that she suffers permanent, debilitating conditions that she 

believes are the result of U.S. Toy’s store racks falling upon her, evidence was also presented that 

various medical professionals have no explanation for some of Saulsberry’s physical conditions

and/or complaints. Further, evidence was presented that Saulsberry had experienced both 

physical and psychological issues prior to the incident at U.S. Toy. Thus, the jury’s verdict 

regarding damages does not demand a conclusion of court error, as Saulsberry contends, but

merely reflects that, while the jury believed that Saulsberry suffered some injury as a result of 

U.S. Toy’s negligence, the jury chose not to believe that the extent of the injuries claimed by 

Saulsberry were the result of U.S. Toy’s negligence. The circuit court did not abuse its discretion 

in refusing to admit the economist’s report into evidence. Point five is denied.

We conclude, therefore, that: 1) The circuit court did not abuse its discretion in excluding 

from evidence as unseasonable and prejudicial various medical expenses that Saulsberry 

attempted to submit three days prior to trial and after trial was to have already commenced. 

Saulsberry averred to the court that all such expenses were contained in a CD provided to U.S. 

Toy and the court ordered her bound by that averment; 2) The circuit court did not err in failing 
21

to conduct a hearing pursuant to Section 490.715 and Deck v. Teasley. Section 490.715 does not 

unequivocally require a hearing and we find no hearing necessary where the only evidence 

intended to be submitted at the hearing is not admissible at trial; 3) The circuit court did not 

abuse its discretion in admitting the testimony of Dr. Zwibelman. Saulsberry herself admitted 

Exhibit 113, from which Zwibelman’s testimony was derived, into evidence and counsel’s 

reference to secondary gain was not prejudicial; 4) Saulsberry has failed to preserve for review 

her claim regarding Dr. Abrams’s testimony; and 5) The circuit court did not abuse its discretion 

in excluding the economist’s report as we find no cumulative errors contributing to the exclusion 

of the economist’s report and no prejudice. We affirm the circuit court’s judgment.

Anthony Rex Gabbert, Judge

All concur.