Opinion
No. 4-745 / 03-1257
Filed December 22, 2004
Appeal from the Iowa District Court for Linn County, Denver D. Dillard, Judge.
American Family Mutual Insurance Company appeals from a jury verdict awarding damages to Jeremy Rausch in an action for uninsured motorist benefits. Rausch cross-appeals from the district court's ruling granting American Family's motion for directed verdict on a particular issue. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Ted Wallace, Davenport, for appellant. cross-appellee.
Timothy Semelroth of Riccolo Baker, P.C., Cedar Rapids, for appellee cross-appellant.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, and Eisenhauer, JJ.
In this appeal from a jury verdict in an action for uninsured motorist benefits, we are asked to resolve one evidentiary issue and various damage issues. We affirm in part, reverse in part and remand.
I. Background Facts and Proceedings
Jeremy Rausch was a passenger in a vehicle that was involved in a collision. The driver was insured by American Family Mutual Insurance Company (American Family). Rausch sued American Family for uninsured motorist benefits.
At the close of Rausch's case, American Family moved for a directed verdict on Rausch's request of damages for future medical expenses and loss of future earning capacity. The district court overruled the motion.
As the case proceeded, defense counsel attempted to read certain passages of a treatise into the record. The court disallowed the attempt.
At the close of all the evidence, American Family renewed its motion for directed verdict on future medical and future earning capacity damages. This time, the district court granted the motion as to damages based on lost future earning capacity. The remaining requests for damages were submitted to the jury, and a verdict for Rausch was rendered as follows:
Past Medical Expense $17,397.88 Future Medical Expenses $65,000.00 Loss of Earnings $0 Past Loss of Function of Body $25,000.00 Future Loss of Function of Body $0 Past Physical and Mental Pain $25,000.00 and Suffering Future Physical and Mental Pain $0 and Suffering
Total $132,397.88
The district court entered judgment for Rausch in the amount of $100,000, reflecting the parties' pre-trial stipulation that the policy was limited to this amount.
American Family moved for a new trial and for judgment notwithstanding the verdict, reiterating its earlier arguments and also alleging that the jury's failure to award damages for future pain and suffering was inconsistent with its award of damages for future medical expenses. The district court overruled the motions.
On appeal, American Family contends the district court (1) should not have disallowed counsel's attempt to read passages of a treatise into the record, (2) erred in denying its motion for directed verdict on future medical expenses, and (3) should not have refused to grant a new trial based on the inconsistency of the verdict. Rausch cross-appeals, claiming the district court erred in granting American Family's motion for directed verdict on the issue of lost future earning capacity.
II. Treatise
American Family argues that the district court abused its discretion in refusing to allow the admission of passages from a treatise known as Campbell's Orthopedics. This treatise was referenced by Rausch's physician in a deposition introduced as part of Rausch's case in chief. At the time of the deposition, counsel for American Family did not question the physician about the contents of the treatise. Instead, counsel waited until the close of trial and stated he "would like to read into the record a few facts from Campbell's" pursuant to the learned treatise exception to the hearsay rule. See Iowa R. Evid. 5.803(18). The district court ruled, "I would permit you to call a witness to testify about these subjects. I'm not going to permit the offer that you've made just to read these matters to the jury." The court invited defense counsel "to call a witness whom you designated, or even to call one of [the plaintiff's] witnesses on this subject tomorrow morning to examine him on this subject." Counsel declined to do so.
We conclude American Family was not prejudiced by the court's ruling, as it was given an opportunity to introduce the treatise through a witness. Iowa R. Evid. 5.103( a) (stating error may not be predicated on the exclusion of evidence unless substantial right of party is affected). Accordingly, we affirm the court's ruling on this issue.
III. Future Medical Expenses
American Family contends the district court erred in denying its motion for directed verdict with regard to future medical expenses. Mensink v. American Grain, 564 N.W.2d 376, 379 (Iowa 1997) (setting forth scope of review of directed verdict ruling). We disagree.
"To recover for future medical expenses, a plaintiff must demonstrate a need for future treatments and the costs associated with the future treatments." Nesbit v. Myers, 576 N.W.2d 613, 614 (Iowa Ct.App. 1998) (citing Mossman v. Amana Society, 494 N.W.2d 676, 679 (Iowa 1993)). The cost and necessity of future treatment must be supported by substantial evidence. Id. (citing Stanley v. State, 197 N.W.2d 599, 607 (Iowa 1972)). While the cost need not be accurately determined, there "should be one or more qualified witnesses giving such an opinion upon which a jury may reasonably fix an allowance." Id. (citing Shover v. Iowa Lutheran Hosp., 252 Iowa 706, 723, 107 N.W.2d 85, 95 (Iowa 1961)).
The record shows the following evidence of the need for and cost of future medical care. Dr. Guidos, a physician who treated Rausch, testified that Rausch suffered from disk pathology, cervical arthritis, lumbar spondylolisthesis, and spondylolysis. He opined that these medical problems were caused by the car accident. He made the following statement with regard to future medical treatment:
As I've already mentioned, he is using medication, which helps with some of the headaches and neck pain. Typically, very typically patients that I see like Jeremy require treatment several times a year with trigger point injections or with physical therapy or other physical medicine and rehab, rehabilitation modalities. It can range anywhere from once to twice a year or up to even monthly.
He also stated that Rausch suffered "significant" muscle spasms that were treated with injections into the most inflamed part of the muscles. When asked whether it "[w]ould be fair to say that the cost of this future medical treatment would be similar to the cost of that same type of treatment that he's had in the past," Dr. Guidos replied, "[Y]es."
Dr. Novak, also testifying by deposition on behalf of Rausch, stated Rausch received a "significant injury" in the form of a sprain/strain of the lumbar and cervical spine "with resulting cephalgia and muscle spasms." He opined that the type of trauma Rausch incurred could be permanent. Dr. Novak stated Rausch never became asymptomatic while under his care.
Even Dr. Kitchell, a physician testifying by deposition on behalf of American Family, referred to Rausch's neck aches, backaches, and headaches as "chronic," although he opined that the condition was not related to the car accident.
We conclude this testimony, together with medical records establishing the cost of Rausch's past care, constitute substantial evidence to support the submission of Rausch's claim for future medical expenses to the jury. See e.g., Baumler v. Hemesath, 534 N.W.2d 650, 654 (Iowa 1995) (finding testimony of cost of medication from date of injury to date of trial sufficient for jury to "reasonably estimate the cost of . . . future medical expenses"); Mossman, 494 N.W.2d at 679 (finding jury question raised on reasonable necessity of future medical treatment and cost despite absence of testimony from treating physician that surgery recommended by expert would be beneficial); Nesbit, 576 N.W.2d at 614 (affirming denial of defendant's motion for directed verdict where evidence showed plaintiff would have future problems that could be treated with over-the-counter remedies, the cost of which were within the knowledge of the lay juror).
IV. Loss of Future Earning Capacity
The district court granted American Family's motion for directed verdict on the issue of future earning capacity. In his cross-appeal, Rausch takes issue with this ruling, contending there was sufficient evidence to submit this damage component to the jury.
Impairment of physical capacity creates an inference of lessened earning ability in the future. Anthes v. Anthes, 258 Iowa 260, 270, 139 N.W.2d 201, 208 (Iowa 1965). The focus is on the "reduction in value of the power to earn, not the difference in earnings received before and after the injury." Id.
Rausch presented evidence of impaired physical capacity. He did not present sufficient evidence to generate a jury question on the reduction in value of his power to earn. At the time of trial he was working as a laser machine operator at a metal fabrication plant. Although he testified the job was hard on him, he admitted he took the job because he did not like white collar work and preferred to be working outside. The record also reveals he was earning substantially more than he did before the accident. In light of this evidence, we conclude the district court did not err in directing a verdict for American Family on this element of damages.
V. Inconsistent Verdict
American Family contends that it is entitled to a new trial because the jury's verdict awarding damages for future medical care, but none for future pain and suffering, was inconsistent. Rausch concedes the verdict is inconsistent but argues that American Family is foreclosed from raising this issue because it is not an "aggrieved party." See Iowa R. Civ. P. 1.1004. He contends that because the policy limit is $100,000, an additional award for future pain and suffering would not benefit American Family. American Family counters that, if the case is remanded to rectify the inconsistency, a jury would be free to reconfigure the entire damage award and arrive at an amount less than the policy limit. In its view, therefore, it is an aggrieved party entitled to raise the inconsistency. We agree with American Family.
The parties agreed to a sealed verdict. As they were not present at the time the verdict was issued, neither party had the opportunity to object to the verdict before the jury was discharged. Cf. Neumann v. Service Parts Headquarters, 572 N.W.2d 175, 176 n. 1 (Iowa Ct.App. 1997) (suggesting the plaintiff should have made her objections to inconsistent verdict before jury was discharged, but stating, "Defendant has not contended by agreeing to a sealed verdict plaintiff did not preserve error and we do not address this issue.").
Turning to the merits, the verdict was clearly inconsistent. See Fisher v. Davis, 601 N.W.2d 54, 59 (Iowa 1999) (concluding "it was illogical for the jury to award Fisher medical expenses to treat her neck injury and pain and then allow nothing for her pain and suffering"). A retrial on damages is in order. Because "[j]ury determinations of various elements of damages are apt to be influenced by the recovery allowed for other elements of damage," a retrial is not limited to a single issue of damages. Foster v. Pyner, 545 N.W.2d 584, 587 (Iowa Ct.App. 1996) (citing Brant v. Bockholt, 532 N.W.2d 801, 805 (Iowa 1995)).
VI. Disposition
We affirm the district court's ruling disallowing American Family's attempt to read portions of a learned treatise into the record. We also affirm its denial of American Family's motion for directed verdict on future medical expenses and the grant of its motion on future loss of earning capacity. We reverse and remand for a new trial on all damages pled by Rausch except damages for future earning capacity.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
All judges concur except Miller, J., who concurs specially.
The majority concludes that because the trial court offered the defendant an opportunity to call a witness to provide foundation for the admission of portions of Campbell's Orthopedics the defendant was not prejudiced by the court sustaining an objection to their admission. The majority thus does not reach the question of whether the trial court erred in sustaining the objection.
The defendant's offer of portions of the treatise came at the conclusion of the evidence. The trial court denied admission. If the trial court erred in doing so, prejudice is presumed unless the contrary is affirmatively established. See Lewis v. Kennison, 278 N.W.2d 12, 15 (Iowa 1979) (holding presumed prejudice arising from erroneous admission of evidence was not refuted). The court offered the defendant the opportunity to call a witness the next morning to lay missing foundation. Because the proposed evidence came from a medical treatise an expert witness, knowledgeable in the matters at issue, would have been required. Practical considerations and common experience suggest that medical experts are not available on short notice as proposed by the trial court. Further, and more importantly, nothing in the record shows or even suggests that such a witness could have been provided within the few, overnight hours available. If the trial court erred, the prejudice which is presumed has not been refuted.
However, I conclude the trial court did not err in denying admission because, as it held, necessary foundation was incomplete. In denying admission of offered portions of the treatise, at various points the trial court reasoned that (1) in his deposition Rausch's physician, Dr. Guidos, "did not specify a specific portion of Campbell's"; (2) rule 5.803(18) does not permit a party to "read a portion of learned treatise to a jury without specifying the specific passage in examination or cross-examination of an expert witness"; and (3) the rule requires "that the portion of the learned treatise at issue must be `called to the attention of an expert witness upon cross-examination or relied upon by that witness in direct examination.'"
For the reasons that follow I conclude the trial court was correct. Iowa Rule of Evidence 5.803 provides that certain matters are not excluded by the hearsay rule. Included among those not excluded are " statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or part." Iowa R. Evid. 5.803(18) (emphasis added). However, under the emphasized language of the rule and the facts of this case in order to be admissible such " statements" must have been "called to the attention of [Rausch's physician, Dr. Guidos] upon cross-examination" in his deposition. See id. Although Campbell's Orthopedics in general was called to his attention upon recross-examination (Dr. Guidos himself volunteered it as an authoritative work), no "statement" from the treatise, portion of the treatise, or passage from the treatise was "called to [his] attention." I conclude, as the trial court did, that because no "statement" from Campbell's was called to the attention of Dr. Guidos the necessary foundation for admission of portions of Campbells was lacking. I would affirm the trial court's evidentiary ruling on that basis.
In interpreting and applying a substantively identical federal rule, a federal district court held that contents of an article in a medical periodical could not be considered in plaintiffs' resistance to summary judgment because the plaintiffs' experts' affidavits, while referring to the article, did not "rel[y] upon any specific factual assertions" in the article. See Conde v. Velsicol Chem. Corp., 804 F. Supp. 972, 990 and n. 15 (S.D. Ohio 1992).
In all other respects I fully concur in the majority opinion and in the result.