Opinion
No. 2-586 / 01-1712
Filed November 17, 2003
Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge.
The defendant State of Iowa appeals from a judgment in favor of the plaintiff in a personal injury action. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, and Robin Formaker and Richard Mull, Assistant Attorneys General, for appellant.
Alan Fredregill of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra Prahl, L.L.P., Sioux City, for appellee.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
The defendant State of Iowa appeals, following a jury verdict in favor of plaintiff Laura Grebasch, from rulings on post-trial motions and all adverse rulings inhering therein. Grebasch filed a notice of cross-appeal, but later dismissed her cross-appeal. We reverse and remand.
I. BACKGROUND FACTS AND PROCEEDINGS.
This case arises out of a motor vehicle accident between an Iowa Department of Transportation vehicle driven by a state employee and a vehicle driven by the plaintiff, Laura Grebasch, on June 30, 1999. Grebasch's vehicle was struck on the passenger side and "totaled" when the state employee apparently drove through a red light at an intersection. Grebasch was treated and released from the hospital on the day of the accident. However, approximately a week to ten days after the accident she began to feel worse and complain of aches and pains. She was seen by her chiropractor, Dr. Rebarcak, and two neurologists, Dr. Hughes and Dr. Clark, in August and September of 1999, and was seen by an orthopaedic surgeon, Dr. Sherman, beginning in January 2000. Dr. Hughes concluded that Grebasch had the "typical aches, pains, and intermittent headaches that are commonly seen after this type of car accident." He also found she had a "mild ulnar nerve impingement at the wrist" and stated she "does play racquet sports and is tall and thin and these likely predispose to this impingement" but that he did not believe the impingement to be directly related to her accident.
An MRI was performed in September of 1999 which showed a "small" herniated disc in Grebasch's neck. Dr. Clark testified at trial that the herniated disc resulted from the injuries she sustained in the car accident. Dr. Rebarcak testified by deposition that, based upon a reasonable degree of chiropractic certainty, the disc herniation was caused by the accident, and that it could lead to problems in the future which could persist the rest of her life. Dr. Clark also testified that although Grebasch would be able to go on with her career and some athletic activities, she would have some limitation in her activities because of her symptoms.
Prior to the accident Grebasch was a very active and athletic person. She was active in racquetball, although she conceded that she had quit playing racquetball before the accident, and ran in competitive road races. She also did all of her own household chores, including carrying her own bags of softener salt, and had recently helped her parents build their new home. Grebasch testified at trial that she was not back to the same level of activity she engaged in before the accident. She stated she did not work out as long as she did before the accident, she no longer carries her own softener salt, did not change the oil in her car, and did not play catch or Frisbee.
Grebasch filed suit against the State for injuries she sustained in the accident. She sought an award of both past and future damages. The State admitted fault. As relevant to the issues raised on appeal, the only issue for the jury to decide was damages. The jury awarded Grebasch $160,001.52 and the court entered judgment in this amount on July 3, 2001.
The jury award included $10,035.46 in property damages, $13,720.44 in past medical expenses, $50,000 in future medical expenses, $6,035.62 in lost wages, $5,000 in loss of future earning capacity, $25,000 in past loss of bodily function, $12,605 in future loss of bodily function, $25,000 in past pain and suffering, and $12,605 in future pain and suffering.
Following the verdict the State filed a combined motion for new trial, remittitur, and judgment notwithstanding the verdict. The State argued in its motions that (1) the court erred in giving Instruction No. 15, the "eggshell plaintiff" instruction because (a) there was not substantial evidence to support it and (b) it was confusing in light of the preexisting injury instruction that was also given, (2) admission of expert testimony by Dr. Clark and records of Dr. Rebarcak was in error because of late disclosure and unfair surprise which was prejudicial to the State, (3) the verdict of $50,000 for future medical expenses was excessive and not supported by substantial evidence, and (4) instructing on the loss of future earning capacity was in error and the verdict of $5,000 for loss of future earning capacity was excessive and not supported by substantial evidence. A hearing was held on the motions and the court issued a written ruling on October 4, 2001.
The court first found there was no doubt in this case that Grebasch had a prior condition, and there was evidence that the condition would predispose her to ulnar nerve impingement. Based on the testimony of Drs. Rebarcak and Sherman the court determined "a jury could find [Grebasch's] prior condition made her subject to greater injury from the negligence of the [State]." It further found that the eggshell instruction and the aggravation of a pre-existing condition instruction were "not confusing nor do they impinge on each other." As to the expert testimony and reports, the court held the State did not show it was in any way actually prejudiced by the fact it did not get some records sooner than it did and denied the second division of the State's motion.
The court did, however, find the award of $50,000 in future medical expenses was excessive and an award of only $10,000 for future medical expense was sustainable. Furthermore, the court determined there was insufficient evidence in the record to support an award of loss of future earning capacity. Thus, the court found the State's motion for new trial should be sustained unless Grebasch accepted a remittitur of the verdict from $160,001.52 to $115,001.52, which would include the remittitur of $40,000 of the damages for future medical expenses and the $5,000 of damages for loss of future earning capacity. Grebasch consented to the reduced judgment amount.
The State timely appealed, and Grebasch filed a notice of cross-appeal. On appeal the State contends (1) the trial court erred in submitting an "eggshell plaintiff" instruction to the jury because (a) the instruction was confusing and conflicted with the aggravation of preexisting injury instruction, and (b) there was no substantial evidence in the record to support submission of the instruction, (2) the admission of expert testimony by Dr. Clark and the records of Dr. Rebarcak was in error because of late disclosure and unfair surprise which was prejudicial to the State, (3) Grebasch's consent to the reduced judgment waived any challenge to the remittitur order and there can be no cross-appeal challenge to the order of remittiture, and (4) the purported notice of cross-appeal by Grebasch was deficient and untimely and should be dismissed. Grebasch later voluntarily dismissed her cross-appeal. In the State's reply brief, filed subsequent to Grebasch's voluntary dismissal of her cross-appeal, the State additionally contends that Grebasch's consent to the modified judgment, dismissal of her cross-appeal, lack of substantial evidence, and the doctrine of law of the case also preclude her from recovering more than the $115,001.52 amount of the verdict after remittitur.
II. MERITS.
A. Jury Instructions.
1. Scope and Standards of Review.
Alleged errors regarding jury instructions are reviewed for correction of errors at law. Sleeth v. Louvar, 659 N.W.2d 210, 213 (Iowa 2003). An erroneous instruction does not entitle the party claiming error to reversal unless the error was prejudicial. Waits v. United Fire Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). "Prejudice results when the trial court's instruction materially misstates the law, confuses or misleads the jury, or is unduly emphasized." Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000). It has also been established that giving instructions which are conflicting and confusing is reversible error. Moser v. Stallings, 387 N.W.2d 599, 605 (Iowa 1986); Sammons v. Smith, 353 N.W.2d 380, 385 (Iowa 1984). An instruction is not confusing if, when the instructions are considered as a whole, one must conclude "that the jury could not have misapprehended the issue presented by the challenged instruction." Moser, 387 N.W.2d at 605. It is reversible error to submit an instruction which does not have evidentiary support in the record. Waits, 572 N.W.2d at 575. When considering whether an instruction has evidentiary support, we give the evidence the most favorable construction it will bear. Id.
2. Trial court's challenged instructions.
The trial court submitted the following jury instructions:
Instruction No. 15
If Laura L. Grebasch had an infirm condition making her more susceptible to injury than a person in normal health, then the defendant is responsible for all injuries and damages which are experienced by Laura L. Grebasch proximately caused by defendant's actions, even though the injuries claimed produce a greater injury than those which might have been experienced by a normal person under the same circumstances.
Instruction No. 16
If you find Laura L. Grebasch had an infirm condition before this incident and this condition was aggravated by this incident causing further suffering or disability, then Laura L. Grebasch is entitled to recover damages caused by the aggravation. Laura L. Grebasch is not entitled to recover for any physical ailment or disability which existed before this incident or for any injuries or damages which she now has which were not caused by the defendants' actions.
The State contends the trial court erred in submitting the "eggshell plaintiff" instruction, Instruction No. 15, for the two reasons noted above. We first consider the second of those two reasons.
3. Evidentiary support for eggshell plaintiff instruction.
Instruction No. 15 is drawn almost verbatim from Iowa Civil Jury Instruction 200.34. However, where that model instructions requires that the drafter "describe [the] condition" at issue, the trial court's instruction merely refers to an "infirm condition" without in any manner describing or identifying the condition or conditions which are arguably at issue. Neither party objected to this lack of specificity. This absence of any description of the condition or conditions relied on by Grebasch makes somewhat difficult our task of determining whether the instruction enjoys evidentiary support. However, for the reasons that follow we conclude the record does contain evidence of a previous infirm condition which supports the instruction.
Some ten years or more before the June 30, 1999 accident Grebasch had experienced recurrent dislocations of her right shoulder. Approximately ten years before the accident she had had surgery to stabilize the shoulder. As a result of that surgery she experienced a physical anomaly, wasting or atrophy of muscle in the shoulder. Prior to the June 30, 1999 accident Grebasch had seen Dr. Rebarcak numerous times over the years for various injuries and ailments, but had apparently suffered no pain or disability as a result of the muscle wasting in her right shoulder. She saw him June 21, 1999, concerning a hyper-extended ankle she had sustained in a May 27 fall. She made no complaint of any shoulder pain or other symptoms.
The record contains substantial evidence that Grebasch suffered injuries in the June 30 accident, including an injury to structures in and around her right shoulder. Dr. Sherman believed that although Grebasch perhaps had some residual muscle imbalance as a result of her previous surgery, the June 30 injury did not exacerbate her previous shoulder instability but appeared to have traumatized her rotator cuff. He opined she had a mild impingement, consisting of her rotator cuff or bursa sac being pushed against the bone in the top of the shoulder when Grebasch elevated her arm forward. From the history Grebasch gave him of a blow to her shoulder in the June 30 accident, and as a result of subsequent examinations, Dr. Sherman concluded Grebasch's shoulder problem was related to and consistent with what had happened at the time of her injury.
From testing and repeated examination Dr. Clark concluded Grebasch was having intermittent symptoms which were referable to part of her brachial plexus, a nerve junction between the neck and arm. He testified her syndrome is often called thoracic outlet syndrome, because the bundle of nerves exits under the clavicle and in front of ("anterior to") the shoulder. He testified that certain physical anomalies may predispose somebody to the syndrome, and Grebasch's symptoms were consistent with the syndrome. In his opinion Grebasch's problem is related to the accident.
From the foregoing evidence the jury could reasonably find that prior to the June 30 accident Grebasch's atrophied shoulder muscle was a non-disabling, asymptomatic condition that made her more susceptible to a shoulder injury than a normal person would be. It could also reasonably determine that although Grebasch had years earlier had surgery to stabilize her right shoulder the right shoulder pain or disability for which she sought compensation arose only after and as a result of the June 30, 1999 accident. Under these circumstances we conclude that an "eggshell plaintiff" instruction was appropriate and the trial court did not err by giving such an instruction. See generally Waits v. United Fire Cas. Co., 572 N.W.2d 565, 575-76 (Iowa 1997).
For reasons discussed below we conclude the trial court's judgment must be reversed and the case remanded for further proceedings. Under such circumstances we need not and do not decide whether the present record contains evidence of any additional infirm condition which would support an "eggshell plaintiff" instruction. We decline to do so because upon any retrial, if retrial is necessary, the trial court will need to decide the question based upon the record made at the new trial, a record which may be different than the record presently before us on appeal.
4. Conflict between the two instructions.
The State also contends the trial court erred in submitting the "eggshell plaintiff" instruction because it was confusing and conflicted with the aggravation of a preexisting injury instruction, Instruction No. 16. Grebasch asserts the State did not preserve error on this issue. She argues the State did not object to Instruction No. 16, but only to Instruction No. 15, and that the State's complaint about Instruction No. 15 was only that the instruction should not have been submitted because it lacked an evidentiary basis.
In objecting to Instruction No. 15 the State did assert there was "no evidentiary basis for this instruction." It argued that aggravation of a pre-existing injury was covered by stock instruction 200.32 (Instruction No. 16), contained in the court's instructions. It also asserted, however, that . . . the previous infirm condition instruction [Instruction No. 15] . . . cannot be reconciled with the preexisting condition instruction [Instruction No. 16], the last sentence, which expressly states, "She is not entitled to recover for any physical ailment or disability which existed before this incident or for any injuries or damages which she now has which were not caused by the defendant's actions."
After the trial court heard argument from Grebasch's counsel it expressed the view there was evidentiary support for the "eggshell plaintiff" instruction, and then decided to make a small change in both Instruction Nos. 15 and 16, a change unrelated to the State's objections. Counsel for the State then asked, "Your honor, are all our other objections to Instruction No. 15 overruled"? The court replied, "Overruled, that's true."
We believe the record demonstrates that the State's argument was not limited to claiming an evidentiary basis was lacking for Instruction No. 15, but also asserted that a conflict existed between Instruction No. 15 and the last sentence of Instruction No. 16. The fact the State's objection was not limited to a lack of evidentiary basis for Instruction No. 15 was emphasized and made clear by the State's inquiry as to whether its other objections to Instruction No. 15 were overruled, and the court's response that they were. We read the State's present contention, that the trial court erred in submitting Instruction No. 15 because it was confusing and conflicted with Instruction No. 16, as raising the same issue as its objection in the trial court, that Instruction No. 15 "cannot be reconciled with" the last sentence of Instruction No. 16. We conclude the State preserved error on its present contention.
The trial court's Instruction No. 15 in this case and the trial court's Instruction No. 10 in Waits are both drawn from Iowa Civil Jury Instruction 200.34. The only difference among the three instructions is the identification of parties by their names. Similarly, the trial court's Instruction No. 16 in this case and the trial court's Instruction No. 9 in Waits are both drawn from Iowa Civil Jury Instruction 200.32. Again, the only difference is the identification of parties by their names. In Waits the defendant claimed the trial court erred in giving the "eggshell plaintiff" instruction, Instruction No. 10 in that case, because the jury was given no guidance as to the circumstances that would warrant its application rather than application of the aggravation of a pre-existing condition instruction, Instruction No. 9 in that case. See Waits, 572 N.W.2d at 575. Our supreme court stated that in essence the defendant's contention was really a claim that the two instructions, in the form given, were "conflicting and confusing." See id.at 576. This is the essence of the objection the State urged in the trial court in this case, and the contention it raises on appeal.
The State did not object to Instruction No. 16, the aggravation of a pre-existing condition instruction, and on appeal concedes that "[t]he evidence offered by the plaintiff justified an aggravation instruction. . . ." This creates a situation where "both instructions would apply, giving rise to a direct conflict in what the jury was to do." Id.at 577. In this case, with no substantial difference from the instructions given in Waits, one instruction told the jury Grebasch could not "recover for any physical ailment or disability which existed before this incident," and the other instruction told the jury she could recover "for all injuries and damages . . . proximately caused by the defendant's actions, even though the injuries claimed produce a greater injury than those which might have been experienced by a normal person. . . ."
The State's objection that the trial court erred in giving Instruction No. 15 because it was confusing and conflicted with ("cannot be reconciled with") Instruction No. 16 raises the same issue raised and dealt with in Waits. In Waits our supreme court held that the trial court erred "in failing to explain to the jury how it was to decide which instruction was applied under the facts of this case," and that the jury should have been told "the aggravation rule excluded liability for pain and disability existing prior to the accident and the eggshell plaintiff rule made any pain and disability arising after the accident compensable, provided the pain and disability resulted from the accident." Id. at 578. The State urges that the result in this case is directly controlled by Waits. We agree. We therefore reverse the judgment of the trial court and remand for further proceedings not inconsistent with this opinion.
B. Admission of evidence.
The State contends the trial court erred in admitting expert testimony of Dr. Clark and records of Dr. Rebarcak because of late disclosure and unfair surprise. Grebasch asserts error has not been preserved on this issue. Although we have found it necessary to reverse the trial court's judgment and remand for further proceedings, we nevertheless address this second issue, as it may recur if retrial is necessary.
1. Scope of review.
The State asserts this issue involves the admission of evidence, which we review for an abuse of discretion, citing Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000). Grebasch agrees. We believe the issue is more correctly characterized as involving a request for sanctions for failure to provide sought discovery materials. We nevertheless also review the trial court's ruling on such an issue for an abuse of discretion. See Hantsbarger v. Coffin, 501 N.W.2d 501, 505 (Iowa 1993) (applying abuse of discretion standard to trial court's ruling concerning failure to comply with statute requiring timely disclosure of expert witnesses in professional liability cases); Miller v. Bonar, 337 N.W.2d 523, 527 (Iowa 1983) (applying abuse of discretion standard to trial court's refusal to apply sanctions to plaintiff's failure to update answers to interrogatories); White v. Citizens Nat'l Bank, 262 N.W.2d 812, 817 (Iowa 1978) (applying abuse of discretion standard to trial court's order sustaining motion to limit evidence of damages as a sanction for failure to supplement answers to interrogatories concerning damages).
2. Dr. Rebarcak's records.
As part of pretrial discovery the State requested that Grebasch produce exhibits she intended to offer at trial, and all medical records which she claimed to reflect any treatment or expense incurred in relation to the June 30, 1999 accident. Grebasch produced documents from Dr. Rebarcak showing treatment on dates through September 22, 1999. When the parties later took Dr. Rebarcak's deposition on June 8, 2001, Grebasch then produced additional records showing she had recently visited Dr. Rebarcak on May 11, 2001. During redirect examination of Dr. Rebarcak in the course of his deposition Grebasch offered Exhibit 80, records of the May 11 office visit. The State objected on grounds that the May 11 records had not been timely produced, and asked exclusion of the exhibit as a sanction.
The State later filed what it denominated a "Motion in Limine," seeking exclusion of Exhibit 80 as a sanction for Grebasch's failure to produce the material prior to the June 8 deposition. When Grebasch offered Exhibit 80 at trial the State objected on the ground the material had not been provided until the June 8 deposition. The trial court admitted Exhibit 80, implicitly overruling the objection. We conclude error was preserved.
The State again raised the issue regarding Exhibit 80 in a motion for new trial. In ruling on the issue the trial court found the State "did not show it was in any way actually prejudiced by the fact it did not get [the] records sooner than it did." The State makes no claim or showing that Exhibit 80 contains information concerning Grebasch's diagnosis or prognosis that in any substantial manner differs from what was contained in the timely produced records. Dr. Rebarcak testified in his deposition that was presented at trial that the opinions contained in his testimony had been formed before Grebasch's May 11 office visit, and that his opinions had not changed as a result of that visit. Under these circumstances we agree with the trial court that the State was not prejudiced by the admission of Exhibit 80. We need not decide whether the trial court abused its discretion in admitting Exhibit 80 because error, if any, was not prejudicial and a trial court error does not constitute reversible error unless it was prejudicial. See Mercer, 616 N.W.2d at 612 (admission of evidence); Iowa-Illinois Gas and Elec. Co. v. Black Veatch, 497 N.W.2d 821, 828 (Iowa 1993) (jury instruction). Finding no reversible error, we affirm on this issue.
3. Dr. Clark's testimony.
Grebasch called Dr. Clark as a witness at trial, which began on Tuesday, June 26, 2001. Dr. Clark testified as to his examinations and evaluations of Grebasch through May 29, 2001. Counsel for Grebasch then asked Dr. Clark if he had done any further testing or had further appointments with Grebasch. Dr. Clark answered that he had seen her early the prior week and had conducted a previously planned repeat of an EMG study. He was then asked, "And what is the result of that study?" The State objected on the ground such information had not been disclosed; the last documentation provided related to the May 29 visit, which was shown as part of Plaintiff's Exhibit 38; and it came as a surprise to the State that there had been another examination the past week. Following argument concerning the State's objection the trial court allowed Dr. Clark to give his conclusions regarding Grebasch's symptoms and injuries. His challenged testimony has been summarized under division II-A-3 above.
In its motion for new trial the State again raised the issue of this testimony by Dr. Clark. It argued it should have received the records of Dr. Clark for the June 18, 2001 visit prior to his trial testimony, and suggested that an appropriate sanction would have been the exclusion of any testimony of Dr. Clark based upon his most recent examination of Grebasch. In ruling on the issue the trial court found the State "did not show it was in any way actually prejudiced by the fact it did not get [the] records sooner than it did."
In objecting to admission of this portion of Dr. Clark's testimony, the State asserted that the last of his records provided to it concerned the May 29, 2001 visit, shown as a part of Plaintiff's Exhibit 38. Dr. Clark was asked if he had mentioned his conclusion of thoracic outlet syndrome in the records of the May 29 visit, and testified that he had done so. Consistent with that testimony, Exhibits 38 and 108 list as one of his three impressions the following:
The records of the May 29 visit are also part of Exhibit 108.
Persistent pain and parethesias in the hand likely the result of combination of factors including prior documented ulnar mononeuropathy at the elbow and median mononeuropathy at the wrist. Clinical history and findings suggest however more proximal source of intermittent nerve inflammation such as thoracic outlet syndrome.
(Emphasis added). The State was thus aware from records produced prior to trial that Dr. Clark believed Grebasch suffered from thoracic outlet syndrome as a result of the June 30, 1999 accident. Under such circumstances the State cannot have been surprised by the portion of his trial testimony to which it objected. The State was not prejudiced by the admission of that testimony and error, if any, in the admission of the testimony does not constitute grounds for reversal. We therefore affirm on this issue.
C. Other Issues.
We have carefully considered all other issues raised by the parties in the appeal and cross-appeal and conclude they are rendered moot by Grebasch's dismissal of her cross-appeal or need not be addressed because of our resolution of the issues we have addressed.
III. Dispostion.
We reverse the judgment of the trial court and remand for further proceedings not inconsistent with our opinion.