Opinion
No. 106,739.
2012-12-14
Jennifer TREMAIN, Appellant, v. Summer EVANS, Appellee.
Appeal from Johnson District Court; Alan R. Slater, Judge. James E. Kiley, Jr., of The Kiley Law Firm, LLC, of Overland Park, for appellant. John M. Graham, Jr., of Law Offices of Stephanie Warmund, of Kansas City, Missouri, for appellee.
Appeal from Johnson District Court; Alan R. Slater, Judge.
James E. Kiley, Jr., of The Kiley Law Firm, LLC, of Overland Park, for appellant. John M. Graham, Jr., of Law Offices of Stephanie Warmund, of Kansas City, Missouri, for appellee.
Before LEBEN, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jennifer Tremain and Summer Evans were involved in an automobile accident at a busy intersection in Johnson County on August 2, 2007. Tremain sued Evans for injuries and damages she claimed resulted from the accident. The case proceeded to trial on June 20, 2011. A jury returned a verdict apportioning fault of 51% on Evans and 49% on Tremain. The jury originally awarded Tremain $11,934 for medical expenses, $760 for economic loss, and nothing for noneconomic loss. After the district court ordered the jury to deliberate further on the issue of noneconomic damages, it awarded Tremain the amount of $500 for those damages.
Arguing that Evans was totally at fault and that the damages award was extremely inadequate, Tremain brings this appeal. She raises several issues: The district court's refusal to strike Evans' medical expert, its denial of Tremain's motion for a directed verdict, its refusal to allow Tremain's rebuttal evidence, its refusal to certify the investigating police officer as an expert in accident investigation, and the jury's return of an inconsistent verdict. After careful review of the briefs, arguments, and the record, we find that none of Tremain's issues provide a basis for reversal, and we affirm.
Facts of the Accident
During the early evening rush hour on August 2, 2007, Evans was headed southbound on King Street and intended to turn left (eastbound) onto College Boulevard, a busy Johnson County thoroughfare. The turn would require her to pass through two lanes of westbound traffic on College Boulevard before she could enter an eastbound lane. Evans, who was at a stop sign, had to yield to westbound traffic on College Boulevard, which had the right of way.
Meanwhile, Tremain was travelling westbound on College Boulevard, driving at or slightly below the 45 mile-per-hour speed limit. She was in the inside lane (nearest to the middle of the street). It was raining: however, the intensity of the rain and wetness of the road was disputed. Tremain, who had driven on College Boulevard many times before and was aware of its dangers, thought her lane was pretty clear even though westbound traffic was backed up from Quivira Road, a busy street that ran parallel to and immediately west of King Street. Evans, however, observed that westbound traffic was backed up east of King Street.
According to Tremain, a black sport-utility vehicle (SUV) drove alongside her—to her right in the outside westbound lane of College Boulevard. As she neared King Street the SUV came to a sudden stop. Evans also saw the stopped SUV and thought she could safely turn left in front of it even though she could not see around it. She was wrong. Tremain struck the front driver's side of Evans' car. Tremain did not see Evans until 1 second before the collision. Evans did not see Tremain until after the collision.
Neither Evans nor Tremain admitted fault to one another, nor did either appear seriously injured. They spoke to each other amicably after the accident. According to Evans, Tremain indicated she was running late to pick up her son from daycare, which would charge her by the minute for continued care if she was late.
Officer Andrew Eager, of the Overland Park Police Department, investigated the accident and spoke to both drivers. Tremain told Officer Eager she was driving approximately 40 miles per hour when the accident occurred and that she was not able to stop when she first saw Evans car just a second or so before the collision because of the wet road.
We will mention more facts throughout the opinion as they bear on the various issues in this appeal.
The District Court's Refusal to Strike Defendant's Medical Witness
The district court has broad discretion in supervising a lawsuit, including the course of discovery. The appellate court will not reverse the district court's orders in this regard absent an abuse of that discretion. Walder v. Board of Jackson County Comm's, 44 Kan.App.2d 284, 286, 236 P.3d 525 (2010), rev. denied 292 Kan. 964 (2011). A judicial action constitutes an abuse of discretion if it (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Tremain argues the district court violated her fundamental right to procedural due process when the court, sua sponte, ordered her a second time to undergo a medical examination by the doctor chosen by Evans as a defense witness. The Fourteenth Amendment to the United States Constitution prohibits any State from depriving “any person of life, liberty, or property, without due process of law.” Section 18 of the Kansas Constitution Bill of Rights also provides that all persons who have suffered injury in property shall have remedy by due course of law. Due process rights are both substantive and procedural. The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1275, 136 P.3d 457 (2006). This is a flexible concept, for not all situations calling for procedural safeguards require the same kind of procedure. See Freebird, Inc. v. Cimarex Energy Co., 46 Kan.App.2d 631, 634, 264 P.3d 500 (2011), rev. denied 294 Kan. –––– (2012). Procedural due process does not entitle the parties to dictate the manner in which they are heard. 46 Kan.App.2d at 634.
The facts giving rise to this issue began when the district court, at Evans' request, ordered Tremain to submit to a medical examination on April 6, 2011, by Evans' expert witness, Chris Fevurly, M.D. Tremain, however, did not attend the medical examination through no fault of her own. Correspondence from the attorney for Evans apparently caused contusion about the time Tremain was to appear and also about directions to Dr. Fevurly's office.
Consequently, Tremain filed a motion that sought, in part, to strike Dr. Fevurly as an expert witness since he had not examined her. A hearing ensued on May 5, 2011, during which the district court criticized Evans' counsel for failing to notify the court that the examination had never occurred. Specifically, the judge said, “Well, let me ask you this. You, obviously, guessed that she didn't show up, didn't file a motion with me to say, you know, she failed to show. We really want an [independent medical examination]. Right?” Evans' attorney responded, “Correct.” The court then articulated its apprehensions about what would happen if it did not order a second medical examination. Specifically, the court did not want a sideshow at trial about who was responsible for Tremain missing her appointment. The court also expressed concern about having Dr. Fevurly testify about Tremain's physical health without having medically examined her.
The district judge and Evans' counsel spoke further on the issue:
“THE COURT: ... I just don't understand—there's a disconnect to me as to if you really wanted this [independent medical examination], why didn't you follow through with it?
“[EVANS' COUNSEL]: We did, Judge, and we, obviously designated [Dr. Fevurly]. We don't know why—we don't know why, until we got [Tremain's motion to strike], she didn't attend. But, obviously, we would love the opportunity for Dr. Fevurly to see her.
“THE COURT: Okay. This thing is going to trial in June.
“[EVANS' COUNSEL]: Correct.
“THE COURT: And this is a refiled case. Do you—you still want her to show up for an [independent medical examination]?
“[EVANS' COUNSEL]: Absolutely.”
The district court again ordered Tremain to attend a medical examination to be performed by Dr. Fevurly. Tremain briefly asked the court to reconsider its order, but the court immediately denied her request.
Tremain found Dr. Fevurly's office on her second visit, and he performed the examination. Dr. Fevurly sent Tremain a report of her examination. Evans and Tremain later took depositions of the doctor on June 3, 2011.
Tremain does not clearly articulate the nature and extent of the due process she was entitled to but denied. Rather, she cites a host of cases from other jurisdictions that generally condemn a district court's decision to grant unrequested relief to one party without providing the other party notice or an opportunity to be heard.
These cases, however, are not directly on point here because the district court did not order an unrequested remedy. The facts show that the court's order the second time for the medical examination followed an ongoing dialogue between the court and both parties concerning the need for Tremain to attend a medical examination before trial commenced. Not only did Tremain have ample opportunity to be heard—she was heard.
Although Evans did not file a second written motion for Tremain to undergo an independent medical examination, Evans nonetheless requested such in open court in the presence of Tremain's counsel, who asked the district court to reconsider its order following its entry. Unlike the cases Tremain cites on appeal, this is not an instance in which the district court granted unrequested relief on its own accord and to the surprise of the adversely effected party. Moreover, any surprise the findings of Dr. Fevurly may have caused to Tremain was mitigated, if not eliminated, by the fact that Tremain took a deposition of Dr. Fevurly a full 12 days before trial commenced. Opinions of this court have suggested that a party's opportunity to take a deposition of the adverse party's expert witness may help prevent unfair surprise. See Honeywell International v. RTF International, No. 98,933, 2009 WL 1858232, at *6–8 (Kan.App.2009) (unpublished opinion) (appellants were not unduly prejudiced by purportedly untimely disclosure of expert witness partly because appellants could have requested a continuance to enable them to obtain their own expert or depose the appellee's expert); Mai v. High Plains Comprehensive Com. Mental Health Ctr., No. 91,481, 2005 WL 1089037, at *4–5 (Kan.App.2005) (unpublished opinion) (trial court did not abuse discretion in permitting substitution of defendant's expert witness after previously designated witness had unexpectedly died; plaintiff “had a number of opportunities to depose” the substituted expert witness).
In light of the broad discretion afforded to a district court in discovery, it cannot be said that no reasonable court would have acted otherwise. See Walder, 44 Kan.App.2d at 286.
The District Court's Denial of Tremain's Motion for a Directed Verdict
When ruling on a motion for directed verdict, the trial court must resolve facts and inferences reasonably drawn from the evidence in favor of the party against whom the directed verdict is sought. Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008). Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. 286 Kan. at 858. An appellate court must apply a similar analysis when reviewing the grant or denial of a motion for directed verdict. 286 Kan. at 858. When no evidence is presented on an issue or where evidence is undisputed and the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions, it is a question of law for the court's determination. 286 Kan. at 858.
Tremain argues the district court erred by denying her motion for a directed verdict on the issue of fault. Indeed, a host of facts support her motion, most notably that Tremain had the right of way and Evans did not see her before the accident occurred. However, other facts exist that speak against granting the motion.
We first note the law applicable to this issue. Under the comparative negligence law of this state, K.S.A. 60–258a(a), the district court must reduce an award for damages in proportion to the amount of fault attributed to the party claiming damages. The allocation of fault is a question for the trier of fact to determine Scales v. St. Louis–San Francisco Ry. Co., 2 Kan.App.2d 491, 498, 582 P.2d 300, rev. denied 225 Kan. 845 (1978).
Also, Kansas law favors motorists who have the right of way over motorists who do not. K.S.A. 8–1527 states:
“The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.”
Similarly, K.S.A. 8–1528(b) states that all motorists stopped at a stop sign must “yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.” A motorist using a public street or highway also has the right to assume that others will obey the law, and the motorist is entitled to rely upon this assumption until he or she has knowledge to the contrary. See PIK Civ. 4th 121.85.
But neither this last assumption, nor a motorist's right of way, provides an absolute shield to liability. For instance, Jarboe v. Pine, 189 Kan. 44, 50,366 P.2d 783 (1961), observed:
“The driver of a motor vehicle upon a public street or highway, even though he be in law the favored driver, or the driver with the right of way, and even though he has the right to assume others traveling on the public street or highway will comply with the obligation imposed upon them, is not absolved of the consequence of his own independent negligent acts. He is required to regulate his use of the public street or highway by the observance of ordinary care and caution to avoid receiving an injury or inflicting an injury upon another. He has a duty to look ahead and see what there may be within his view which may affect his use of such street or highway and to keep a lookout for other users of such street or highway, and he is in law presumed to have seen and heard that which he could have seen and heard had he kept a proper lookout and exercised ordinary care and caution.” (Emphasis added.)
Tremain compares the present case to St. Clair v. Denny, 245 Kan. 414, 781 P.2d 1043 (1989). There, both the plaintiff and the defendant died from an accident at a rural intersection. Although no eyewitnesses could testify as to who caused the accident, police determined the defendant had failed to stop at a posted stop sign. At trial, the district court granted the plaintiff's motion for a directed verdict on the issue of liability because no evidence suggested she had been speeding or had failed to keep a proper lookout and that if she had, the overwhelming cause of the accident was the defendant's failure to stop at the stop sign. But the plaintiff also had an unobstructed view of the uncongested intersection. On appeal, the defendant argued the directed verdict was in error because a reasonable person could find the plaintiff had failed to maintain a proper lookout. Our Supreme Court disagreed and concluded that nothing in the record suggested the plaintiff had failed to keep a proper lookout and, thus, the defendant's failure to stop at the stop sign was the proximate cause of the accident. 245 Kan. at 419–20.
Despite some similarities, St. Clair is distinguishable from the present case. In St. Clair, the plaintiff had an unobstructed view of a clear intersection. Tremain, conversely, drove on a busy street in rush-hour traffic during rainy weather and her view of the intersection just prior to her arrival was obstructed by the large SUV in the lane next to her. Moreover, St. Clair was a somewhat unusual case in that there were no surviving eyewitnesses who could testify as to what caused the accident. Here, both parties testified and differed about whether Evans was fully responsible for the accident.
Tremain maintained at trial, as she does now, that she had the right of way and had the right to assume that Evans would not attempt her turn and cross College Boulevard until it was safe for her to do so. Evans appears to have always maintained she had some degree of fault but not 100% of it. While Evans maintained she really did not know whether Tremain was driving safely under the existing conditions, she also maintained that due to the weather and heavy rush-hour traffic, all drivers must be aware and drive with caution. Evans also testified that Tremain indicated at the accident scene that she was running late to pick up her son at day care. Tremain testified she was driving at or just below the speed limit. She confirmed she was approaching a busy intersection in heavy rush-hour traffic that was quite backed up.
Even though Tremain had the right-of-way at this intersection, these facts suggest that a reasonable juror could conclude Tremain was, at least, partially at fault for the accident for failing to keep a proper lookout and/or driving at a speed that was excessive for the conditions then existing. Therefore, despite a host of evidence showing that Evans was predominantly liable, the district court did not err in denying Tremain's motion for a directed verdict. See, e.g., Peeks v. Meier, No. 105,648, 2011 WL 6413666, at *4 (Kan.App.2011) (unpublished opinion) (observing that defendant's admitted fault “does not foreclose her from asserting the comparative fault” of the plaintiff), petition for review filed December 13, 2011.
The District Court's Refusal to Allow Tremain to Present What She Argued Was Rebuttal Evidence
Rebuttal evidence is limited to issues placed in conflict by the adverse party. The use and extent of rebuttal rests in the sound discretion of the trial court, and its rulings will not be reversed unless it appears the discretion has been abused to a party's prejudice. State v. Drach, 268 Kan. 636, Syl. ¶ 5, 1 P.3d 864 (2000).
This issue arose when Tremain attempted to call Dr. Steve Simon, her medical expert as a live witness to give rebuttal to testimony offered by Dr. Fevurly during Evans presentation of her case. Tremain had previously presented Dr. Simon's testimony by deposition during her case-in-chief. The district court sustained objections by Evans to several questions to Dr. Simon during rebuttal on the basis they were either cumulative to testimony the doctor had previously given or they asked for improper comment from one expert upon the credibility of another expert. Apparently, Tremain had seen Dr. Simon twice after the parties had taken the deposition of Dr. Fevurly.
Objections began when Tremain's counsel asked Dr. Simon whether he agreed “with any of [Dr. Fevurly's] ultimate conclusions?” Evans' attorney objected that the subject matter was not proper rebuttal and it was not proper to ask one witness to comment on another witness' credibility. The district court appeared to sustain both objections. The court noted that Dr. Simon had already provided his opinion testimony through the deposition, which took more than 2 hours to present, and the court was not “going to allow one expert to express an opinion on the other expert, whether or not they have reached the right conclusion.” The court indicated that it would allow rebuttal testimony from Dr. Simon “if there is a fact that is incorrect,” but that “you cannot [simply] go back over your case again.”
Several more questions by Tremain's counsel during rebuttal sought testimony that Simon had previously given. Counsel asked whether Dr. Simon's exam of Tremain was normal, and whether it was normal for a 24–year–old woman to have three bulging discs and disc desiccation. Dr. Simon had already testified in his deposition about the abnormalities of her overall health, as well as her spinal injuries. Tremain's counsel asked whether microtears were purely theoretical or recognized in the medical community. Again Dr. Simon had previously testified in his deposition about the source of Tremain's pain, her acute muscle tears, and her soft-tissue injuries.
Tremain's counsel asked several more questions, and the district court sustained Evans' objection to each one. The court seemed to rely on both of these bases (improper rebuttal and improper comment on another witness' credibility) for its ruling. Several times the court noted that it considered the testimony Tremain sought to be improper rebuttal, saying it was “not going [to] let you retry your case in rebuttal,” that the testimony sought was “tantamount to retrying the case and rehashing the evidence that is already before the jury,” and that “[t]his really goes over the evidence that you have already presented in your case.” During the sequence of questions and sustained objections, the judge again referenced both bases for sustaining the objections:
“I am not going to allow cross-examination on one expert's opinion versus another expert's opinion or whether the other expert's opinion was right or wrong. That is for the jury to decide.
“It's a way to retry your case. Both sides have rested. I am going to sustain the objection.”
When the district court relies upon more than one basis for sustaining an objection, we must determine on appeal whether the overall ruling is correct, not whether both bases for its decision are correct. See State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004) (holding the district court should be upheld if its ruling is correct even if the reason stated by the court was not). Therefore, if one basis for the court's refusal to allow this evidence was correct, its ruling should be upheld. After reviewing the full sequence of questions and sustained objections, we conclude that the district court's rulings were correct because Tremain sought to present evidence that was not really rebuttal.
Rebuttal evidence is evidence that contradicts evidence introduced by an opposing party. State v. Flournoy, 272 Kan. 784, 805, 36 P.3d 273 (2001). Rebuttal evidence that is merely cumulative, however, should not be admissible:
“Rebuttal is not intended to give a party an opportunity to tell one's story twice. Thus, rebuttal should not be used to corroborate, further develop, or repeat the plaintiff's case in chief. Evidence which is merely cumulative, adding nothing further to the position taken by previous witnesses, that merely bolsters or supplements that already adduced by the plaintiff, is not admissible as rebuttal.” 75 Am.Jur.2d, Trial § 291, p. 524–25.
We need not determine whether the questions asked also sought improper opinion testimony. It is true, as the district court's comments suggest, that an expert witness may not pass on the weight or credibility of another witness' testimony. See State v. Torres, 280 Kan. 309, 334, 121 P.3d 429 (2005). But an expert certainly can disagree with another expert's conclusions, just as one witness can testify that the light was red and another can testify that it was green. See In re Cessna 208 Series Aircraft Products Liability Litigation, No. 05–md–1721–KHV, 2009 WL 1649773, at *1 (D.Kan.2009) (unpublished opinion) (noting that an expert providing critique of another expert's substantive testimony is proper rebuttal but that an expert may not attack the other expert's honesty). Here, despite the district court's invitation to Tremain's counsel to ask questions of Dr. Simon about any factual errors that Dr. Fevurly might have made, the questions all sought conclusions about subjects that Dr. Simon had already testified about. We therefore conclude that the district court properly sustained the objections to Dr. Simon's testimony, objections that were sustained question by question. On appeal, Tremain has not shown that any of the testimony she sought to present was noncumulative and thus proper rebuttal evidence.
The district court did not abuse its discretion in sustaining the objections by Evans during the rebuttal portion of the trial. See Flournoy, 272 Kan. at 805 (use and extent of rebuttal rests in the sound discretion of the district court.)
The District Court's Refusal to Certify Officer Andrew Eager as an Expert in Accident Investigation
Tremain sets forth in her brief as one of her issues on appeal that the district court erred in its refusal to certify the police officer who responded to the scene of the accident as an expert in “accident investigation.” The qualification of an expert witness and the admissibility of expert testimony are both matters within the broad discretion of the trial court. Manhattan Ice & Cold Storage, Inc. v. City of Manhattan, 294 Kan. 60, 70, 274 P.3d 609 (2012).
We are somewhat puzzled by the allegation. Again, we have reviewed the trial transcript and it establishes that while the district court refused to certify Officer Eager as an expert in accident reconstruction, it did not refuse to certify him as an expert in accident investigation. The judge indicated he would permit Officer Eager to “testify as to what he saw when he got there; whose vehicle was damaged where; based upon that, who had the right of way or didn't have the right of way. I am going to let him testify to those things because that is what police officers normally do.” But, the district court further stated that Officer Eager could not express an opinion “about the speed of the vehicle based upon the depth of the crush, the coefficient of friction between tires and the roadway, the mass of the vehicle, [and] what speed it had to be going.... That was beyond his training.”
Tremain even agreed with the district court on this last point, and her counsel indicated they never intended for Officer Eager to testify as an expert on accident reconstruction. At another point in the dialogue about the issue, the court indicated it would not allow Officer Eager to discuss whose fault the accident was. Tremain's appellate brief acknowledges that caselaw of this state would prohibit him from doing so.
In summary, we are unclear as to exactly what Tremain is arguing that the district court did wrong. Tremain is essentially arguing that the court improperly excluded evidence. Yet she does not state what the evidence was. Tremain simply has not proffered the testimony from Officer Eager that she claims he should have been allowed to put before the jury. There is no way to determine the extent to which the district court's error—if any—affected the outcome of the trial. Therefore, Tremain's argument fails. See McGinnes v. Wesley Medical Center, 43 Kan.App.2d 227, 238, 224 P.3d 581 (2010) (“ ‘It is well established that a party may not assert error based upon the erroneous exclusion of evidence in the absence of a proffer of that proposed evidence.’ ”), rev. granted April 11, 2011.
Was the Jury Verdict Inconsistent and a Compromise Which Warrants a New Trial
In her final argument, Tremain claims the jury returned an inconsistent, compromised verdict because it initially awarded her amounts for medical expenses and economic loss but nothing for noneconomic damages. She appears to be dissatisfied with the jury's subsequent $500 award for noneconomic damages after the court instructed it to deliberate further on the issue.
As a general rule, a verdict will be set aside as contrary to the law when, considering the evidence, the verdict is contrary to the instructions given by the trial court. An appellate court will not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the party who prevailed in the court below, supports the verdict, then the court should not intervene. City of Mission Hills v. Sexton, 284 Kan. 414, 421–22, 160 P.3d 812 (2007).
Certainly, the first verdict the jury returned was inconsistent since it did not award any sum for noneconomic loss despite awarding several thousand dollars for medical expenses and economic loss. An inconsistent verdict occurs when, e.g., a jury award is limited to medical expenses but includes nothing for pain and suffering, as shown by uncontradicted evidence. Such a verdict warrants a new trial. Stowers v. Rimel, 19 Kan.App.2d 723, 727, 875 P.2d 1002 (1994) (citing Miller v. Zep. Mfg. Co., 249 Kan. 34, 47, 815 P.2d 506 [1991] ).
There appears to be no question that Tremain suffered injuries in this accident, which caused her to experience pain and suffering. The district court obviously recognized this and remedied the situation when it instructed the jury to return to deliberations and place some figure “in that slot [for noneconomic damages].” The jury did so and a very short time later awarded Tremain $500.
Stowers is particularly probative to the present case. There, the jury awarded $4,221 in medical damages but nothing for noneconomic damages to the plaintiff, whom the defendant injured in a car accident. After discussion with counsel, the district court instructed the jury to deliberate further and award “some amount of pain and suffering” unless the jury determined the plaintiff suffered only minimal injury. The jury then awarded Stowers $500 for noneconomic damages. The Stowers court affirmed and recognized the district court's method of resolving the inconsistent verdict was arguably preferable to the two other alternative remedies, additur or granting a new trial. 19 Kan.App.2d at 728–29; see also Sultani v. Bungard, 35 Kan.App.2d 495, 498–99, 131 P.3d 1264 (2006) (citing Stowers for the same proposition). Notably, the Stowers court also observed:
“We fail to see any prejudice to the plaintiff by the procedure employed. It is apparent from the size of the original verdict and its limitation to medical expenses alone that the jury was not overwhelmed by the damages shown by plaintiff. The additional instructions given by the trial court did not overemphasize the fact that the jury should award only minimal damages. Those instructions did not unduly affect the verdict in this case.” 19 Kan.App.2d at 729.
Although Tremain perhaps hoped for a more lucrative award, as the Stowers court observed, the small amount may simply demonstrate that “the jury was not overwhelmed by the damages shown by the plaintiff.” 19 Kan.App.2d at 729, see also Stubbs v. Potocnik, No. 106,934, 2012 WL 1970252, at *3–6 (Kan.App.2012) (unpublished opinion) (jury's modified award of $50 in noneconomic damages, compared to about $8,600 in combined medical expenses and lost wages, “was not inconsistent because it awarded an amount for non-economic damages”).
The district court properly remedied a situation that otherwise would have required us to reverse. Tremain does not argue that the final verdict was contrary to uncontradicted evidence that established she was entitled to a much higher award. Apparently, the medical testimony conflicted as to the nature and extent of her injuries. We will not disturb the jury's finding on these issues.
Affirmed.