Opinion
No. 3-868 / 03-0557
Filed March 24, 2004
Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.
Emily Griswold Leet appeals the district court's judgment on the basis that certain evidence was erroneously excluded and the court refused to grant a new trial based on the jury's failure to award certain damages. AFFIRMED.
Bruce Walker of Phelan, Tucker, Mullen, Walker, Tucker Gelman, L.L.P., Iowa City, for appellant.
James Craig and Cynthia Scherrman Sueppel of Moyer Bergman, P.L.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
This appeal arises from a car accident in April 1999. Emily Leet, the driver of one of the cars, sued Jessica Burbridge, the driver of the other, for negligence. A jury returned a verdict in favor of Leet, finding Burbridge ninety percent at fault. The jury awarded $1,641 for past medical expenses and $1,000 for past pain and suffering, but nothing for future medical expenses, future pain and suffering, or past or future loss of function of the body. The district court denied Leet's motion for a new trial.
Police cited Burbridge for making an improper left turn.
On appeal, Leet challenges the district court's 1) exclusion of an insurance investigator's statement, 2) exclusion of a physician's rating of Leet's impairment, and 3) refusal to grant a new trial based on the jury's failure to award certain damages. We affirm.
I. Exclusion of Statement
Defense counsel used an insurance investigator's statement to impeach Leet's testimony and to refresh her recollection. The pertinent testimony was as follows:
Q. All right. Now, do you recall specifically if shortly after that visit you talked with the individual investigating the automobile accident? A. I don't recall when it was.
The parties agreed not to refer to the fact he was an insurance investigator.
Q. Did you give that person a statement? A. Yes.
Q. Was it your understanding that it was recorded? A. Yes.
Q. I'd like to hand you what's been not marked but ask you if what I'm showing you appears to be a statement. A. Yes. . . .
Q. Do you recall being asked during that investigation what injuries you'd suffered in the accident? A. Yes.
Q. And do you recall what you said? A. I believe I said that I had hurt my neck.
Q. Do you recall making any statement during that time that you were having headaches? A. I don't recall.
Q. Do you recall being asked the question "So basically the only complaint of pain you have is with your neck" during that statement?
[Plaintiff's objection overruled]
Q. Ms. Leet, isn't it true that in mid July of 1999 when you gave the statement we were talking about, you indicated your only pain complaint was with your neck? A. I don't recall.
Q. If you saw the statement, would it refresh your recollection? A. I believe so.
Q. Page 9. A. Yes.
Q. Have you had — Were you answering yes to my question? A. Yes.
Q. You indicated that your only pain was neck pain? A. Yes.
Leet claims that, once defense counsel began reading from the statement, the entire document needed to be admitted. The district court agreed that "at a certain point" reading would require admission, but concluded the questioning had not reached that point. We find no abuse of discretion in this ruling.
Leet does not dispute that a party may call a witness's reliability into question with the use of prior inconsistent statements. See Iowa R. Evid. 5.613; Brooks v. Holtz, 661 N.W.2d 526, 531 (Iowa 2003). This is what defense counsel attempted to do. However, when questioned about the contents of her prior statement, Leet responded, "I don't recall." At this point, defense counsel elected to use the document to refresh her recollection. This was permissible. See Iowa R. Evid. 5.612.
II. Exclusion of Physician's Testimony
Leet was seen by Dr. Richard Neiman on one occasion approximately three weeks before trial. At his deposition, taken a week before trial, Dr. Neiman disclosed his belief that Leet had a permanent impairment rating of "four percent of the whole person." The district court excluded only this portion of his testimony, reasoning that the Defendants were not "able to respond to that in a timely fashion given the late date of the examination and the late date of the disclosure of the supplementation of the expert testimony." The court also suggested there would be "little prejudice" to Leet "given that there is substantial evidence that will be in the record that it's permanent." In a post-trial ruling, the court essentially reaffirmed its earlier ruling.
Leet contends the district court's ruling amounted to an abuse of discretion. See Morris-Rosdail v. Schechinger, 576 N.W.2d 609, 611 (Iowa Ct.App. 1998) (setting forth standard of review). She maintains that Dr. Neiman was not an expert whose opinions are governed by the disclosure requirements and deadlines of Iowa Rule of Civil Procedure 1.508, but was a treating physician. She also contends Burbridge "failed to show sufficient prejudice to justify exclusion of his opinions on impairment."
Rule 1.508, pertaining to discovery of experts, requires disclosure of expert opinions acquired or developed in anticipation of litigation or for trial," and mandates supplementation of discovery responses no later than thirty days prior to trial. Iowa R. Civ. P. 1.508(1), (3). This rule "does not preclude an expert from testifying to facts and opinions derived prior to being retained as an expert." See Morris-Rosdail, 576 N.W.2d at 612. Therefore, the opinions of a treating physician are generally not covered by the rule. Id.
We question whether Dr. Neiman was a treating physician as Leet contends. Although he was in the same group as other physicians who had treated her, he only examined her once, less than a month before trial. Cf. Id. (reversing exclusion of physicians' testimony where one examined plaintiff nine months before trial and other was "an active treating physician at the time of trial"). He further conceded that his opinion concerning the connection between Leet's symptoms and the accident was based entirely on her medical history.
Even if Dr. Neiman could be viewed as a treating physician, we agree with the district court that "his examination was clearly for purposes of trial preparation and an impairment rating is certainly testimony that is more related to expert testimony than testimony of merely a treating physician." Id. (stating "even treating physicians may come within the parameters of rule [1.508] when they begin to assume a role in the litigation analogous to that of a retained expert.").
We also agree that "the impairment rating injected a new issue into the case that should have been disclosed and that Defendant should not have been forced to request a continuance in order to consult with further expert testimony to potentially counter that impairment rating." Although another physician, Dr. James Worrell, had earlier opined that Leet had a permanent impairment, he did not specifically assign an impairment rating. Similarly, treating physician Dr. Barcellos testified that she never gave patients an impairment rating because she didn't believe she could give a fair one.
Finally, we note that the district court excluded only a small portion of Dr. Neiman's testimony, allowing him to state his diagnosis (cervical strain with ongoing symptoms) and his opinion that Leet's neck pain and headaches were related to the accident. Cf. Carson v. Webb, 486 N.W.2d 278, 280-281 (Iowa 1992) (holding exclusion of all opinion evidence not subject of lay testimony required reversal). The exclusion of this portion, ascribing a permanent impairment rating of only four percent, did not prejudice Leet. For these reasons, the district court did not abuse its discretion in excluding Dr. Neiman's impairment rating.
III. Failure to Award Certain Damages
Leet finally contends that the jury rendered an inconsistent and inadequate verdict by failing to award 1) future medical expenses, 2) damages for future pain and suffering, and 3) past and future loss of function of body, while at the same time awarding past medical expenses and damages for past pain and suffering.
A. Future Medical Expenses
A plaintiff must provide substantial proof of the necessity of future treatment and its cost. Mossman v. Amana Soc., 494 N.W.2d 676, 679 (Iowa 1993). While a plaintiff does not have to accurately determine the cost of future medical expenses, there should be one or more qualified witnesses giving such an opinion upon which a jury may reasonably fix an allowance. Nesbit v. Myers, 576 N.W.2d 613, 614 (Iowa Ct.App. 1998) ( citing Shover v. Iowa Lutheran Hosp., 252 Iowa 706, 107 N.W.2d 85, 95 (1961)).
Dr. Worrell first saw Leet about two years after the accident. He testified by deposition that he did not think any of Leet's problems would get worse in the foreseeable future. He stated, "I don't think particularly if she continues being as active as she can and do the stretching exercises — I don't see that she'll get particularly worse, no." He placed no physical limitations on her activities. When asked specifically about future medical treatment, Dr. Worrell stated:
I think she'll need to have the medication and the cost of that, of course is variable. Neurontin's fairly expensive. I don't know exactly what it is. She should have physical therapy visits. If she has any flare-up, she should have more frequent visits with ultrasound and things like that. She should continue her exercises and probably check with a physician every six to 12 months.
Dr. Barcellos examined Leet three times. She conceded she had no treatment contact with Leet after May 2002. She opined Leet's pain would last for an "indefinite period," and recommended Leet continue with medications, physical therapy and exercise programs "to end the pain."
Dr. Neiman testified that he did not impose any work restrictions on Leet. He believed she should remain as active as possible but "avoid excessive flexion, extension and lateral flexion and rotation of the cervical spine." He suggested she continue to take Neurontin.
Although a jury could have awarded future medical expenses based on this testimony, it also reasonably could have found the testimony too speculative to support an award of future damages. As the district court noted, the jury alternately could have determined that "any damage proximately caused by this accident was eliminated shortly after the incident." These types of findings are particularly within the province of the jury. Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 892 (Iowa 1996). While the evidence was uncontradicted, we have stated that a jury is not "required to accept and give effect to testimony which it finds to be unreliable." Matthess v. State Farm Mut. Auto Ins. Co., 521 N.W.2d 699, 704 (Iowa 1994). Accordingly, we reject this challenge.
B. Future Pain and Suffering
"[T]he assessment of pain and suffering damages is within the jury's discretion. We will not interfere unless the jury's award is so small or so large that it `shocks the conscience.'" Blume v. Auer, 576 N.W.2d 122, 126 (Iowa Ct.App. 1997) (quoting Cowan v. Flannery, 461 N.W.2d 155, 158 (Iowa 1990)). The jury only awarded $1,000 for past pain and suffering. Given this minimal award for past damage and the jury's determination that the accident caused no future medical expenses, we cannot conclude that its failure to award damages for future pain and suffering shocks the conscience.
C. Future Loss of Function
Loss of function of the body is the inability of a particular body part to function in a normal manner. Brant v. Bockholt, 532 N.W.2d 801, 804-05 (Iowa 1995). "It does not include conditions of incapacity embraced within the definition of pain and suffering." Blume, 576 N.W.2d at 126 n. 2 (citing Brant v. Bockholt, 532 N.W.2d at 805).
The district court declined to grant a new trial based on the jury's failure to award this item of damages, in light of evidence that Leet "was able to generally engage in the normal functions of life." We find no abuse of discretion in this ruling. The jury could have found on this record that Leet's future bodily functioning would be diminished, but such a finding was not required as a matter of law. Furthermore, if the jurors had found on this record that Leet's future bodily functioning would be diminished, they were not required as a matter of law to find a proximate causal connection between the diminution and the motor vehicle collision that was the subject of this case. Accordingly, the verdict was not so inconsistent as to require a new trial in this case.