Opinion
22-1628
03-06-2024
AI PAPIBOUNE, Plaintiff-Appellant, v. LOURDES IBARRA DEIBARRA, Defendant-Appellee.
Gail Boliver of Boliver Law Firm, Marshalltown, for appellant. Spencer Vasey Dirth, Des Moines, for appellee.
Appeal from the Iowa District Court for Marshall County, Amy M. Moore, Judge.
A plaintiff appeals from an adverse verdict in a negligence suit following an automobile accident. Affirmed.
Gail Boliver of Boliver Law Firm, Marshalltown, for appellant.
Spencer Vasey Dirth, Des Moines, for appellee.
Considered by Bower, C.J., and Buller and Langholz, JJ.
BULLER, JUDGE
Ai Papiboune alleges the district court erred when it ruled, following an unreported hearing, that he could not offer unspecified lay-opinion testimony on whether a car accident caused certain injuries. Because we find he failed to preserve error on this claim due to an inadequate offer of proof, we affirm.
In the aftermath of the 2020 derecho passing through Marshalltown, Papiboune drove his girlfriend's car to Menards. On his way back, he was struck by a Ford Escape driven by Lourdes Ibarra Deibarra.
Both Ibarra Deibarra and Papiboune were "quite shaken up" after the collision but declined medical assistance at the scene. After going home with his brother, Papiboune went to the hospital on his own. He did not have any broken bones, but he reported pain at a level of "3 to 4" on a ten-point scale. In particular, he reported pain in his neck, right shoulder, and back of the head. According to Papiboune, over the following weeks he experienced pain ranging from "3 to 4" to "8 to 10," on an inconsistent but mostly decreasing trajectory. He reported overall he was getting "better every day" and was able to return to work after about two weeks.
Papiboune claimed he had no previous neck or right shoulder injuries, but medical records showed he presented to doctors on multiple occasions over the last decade reporting just such injuries, often allegedly arising from car accidents. His primary care physician documented a history of "malingering[,] especially with illnesses and injuries where he requested extended time off of work."
Papiboune filed a negligence lawsuit against Ibarra Deibarra. Before trial, the parties stipulated that Ibarra Deibarra was at fault but disputed medical causation and damages. Ibarra Deibarra filed a motion in limine seeking to exclude lay-opinion testimony from Papiboune about medical causation. A hearing was held on the motion, but it "was not reported by agreement of the parties." A subsequent written order intended to "memorialize the court's ruling" was filed after trial, indicating the court ruled: "Testimony that the accident caused [Papiboune]'s injuries by [Papiboune] should be excluded."
At the close of Papiboune's case-in-chief, the district court granted a directed verdict on damages related to injuries for past pain and suffering and past loss of full mind and body. The case went to the jury on the questions of medical expenses beginning the day of the accident and lost wages. And the jury returned a sealed verdict finding Ibarra Deibarra did not cause any damage to Papiboune. Papiboune appeals, challenging only the district court's motion-in-limine ruling.
Before proceeding to the merits, we address a procedural roadblock: Ibarra Deibarra contends Papiboune waived error by not making an offer of proof. Our ability to address this question is significantly hamstrung by the lack of transcript from the motion-in-limine hearing. We have a limited idea of what transpired based on the district court's order that sought to "memorialize" the court's prior ruling, but there is nothing before us memorializing any formal or informal offers of proof-or even a rough summary of the testimony at issue. Because the appellant bore the burden to provide us with a record disclosing error, see In re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005), we must presume no offer of proof was made. We now decide whether, in this case, the absence of an offer of proof is fatal to appellate review.
The supreme court has concisely explained the purposes behind an offer of proof:
An offer of proof serves to give the trial court an adequate basis for its evidentiary ruling and to make a record for appellate review. Such a record is necessary so the reviewing court does not have to base error on speculation as to the answers that would have been given to questions had the questions been asked.State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999) (internal citation and quotation marks omitted), abrogated in part on other grounds by State v. Crawford, 972 N.W.2d 189, 197-98 (Iowa 2022). The supreme court has also explained why offers of proof are typically necessary to invoke appellate review:
This court considers offers of proof so important that we require them to preserve error. We will not presume prejudice when the answer to the question is not obvious and the proponent made no offer of proof. Nor will we consider error preserved without such an offer unless the whole record makes apparent what is sought to be proven.State v. Lange, 531 N.W.2d 108, 114 (Iowa 1995) (internal citations omitted). And, in her treatise on Iowa evidence law, Professor Emeritus Laurie Dore makes similar observations about what makes an offer of proof adequate to preserve error:
The sufficiency of an offer of proof must be evaluated in light of the purposes the offer is intended to achieve. While this determination will depend to a large extent upon the circumstances of the particular case, an offer of proof must satisfy certain prerequisites in any situation in order to be adequate.
As an initial matter, the offer must set forth the substance of the evidence that would have been elicited. The evidence should be reasonably specific and not conclusory; a recitation of specific facts based upon the personal knowledge of the witness should generally be provided. Facts necessary to demonstrate the admissibility of the rejected evidence must of course be included. By including specific facts in the offer, counsel not only provides the trial and appellate courts with a more complete understanding of the evidentiary issue
but also, as a practical matter, presents a stronger claim that exclusion of the evidence is prejudicial.7 Laurie Kratky Dore, Iowa Practice Series: Evidence § 5.103:11 (West 2023) (footnotes omitted).
Applying these principles, we can generally infer from the whole record that Papiboune would have testified in some fashion that the collision with Ibarra Deibarra caused his injuries. But we don't know anything specific about Papiboune's testimony-its precise factual contours, the basis for his beliefs on medical causation, or whether those beliefs would merely be a conduit for hearsay or other inadmissible evidence. While some motion-in-limine rulings can preserve error with a thin offer of proof, we conclude this is not one of them.
Our conclusion stems partially from the fact that lay-opinion testimony on medical causation is only permitted in limited circumstances, and we have no reason to believe Papiboune's testimony would have qualified-especially with his history of malingering and reporting similar injuries from other car accidents. See Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 794 (Iowa 2009) ("We have applied the rule that a plaintiff needs expert testimony to prove causation unless the causation is so obvious that it is within the common knowledge and experience of a layperson, when a person claims damages for emotional distress."); Yates v. Iowa W. Racing Ass'n, 721 N.W.2d 762, 774 (Iowa 2006) ("[M]edical testimony regarding whether an accident caused an injury is not within the knowledge and experience of ordinary laypersons."). With this backdrop, we are unable to fairly review whether the district court abused its discretion in excluding testimony when we don't know what the testimony would have been. See Dore, Iowa Practice Series: Evidence § 5.103:11 (on the need for a detailed offer of proof, including "[f]acts necessary to demonstrate the admissibility of the rejected evidence"). Because this record does not contain a formal or informal offer of proof, we have no error to review and affirm the district court. See Greene, 592 N.W.2d at 27; Lange, 531 N.W.2d at 114.
AFFIRMED.