Opinion
No. 106,934.
2012-05-25
Sonja STUBBS, Appellant, v. Elise POTOCNIK, Appellee.
Appeal from Riley District Court; Paul E. Miller, Judge. Frank D. Taff, of Topeka, for appellant. Craig W. West and Stephen M. Kerwick, of Foulston Siefkin LLP, of Wichita, for appellee.
Appeal from Riley District Court; Paul E. Miller, Judge.
Frank D. Taff, of Topeka, for appellant. Craig W. West and Stephen M. Kerwick, of Foulston Siefkin LLP, of Wichita, for appellee.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Sonja Stubbs appeals the district court's denial of her motion for a new trial on the issue of damages she received as a passenger in an automobile involved in an accident. Stubbs claims she should be granted a new trial because the verdict was inconsistent, inadequate, or was rendered under passion or prejudice. We affirm.
On May 16, 2009, Sonja Stubbs was in the backseat of a car that was driven by Alice Johnson when it was struck from behind by a car driven by Elise Potocnik. Emergency medical personnel responded to the accident and transported Stubbs to the hospital. At the hospital, Stubbs reported to hospital personnel that she was suffering from lower back pain. After undergoing a CAT scan, Stubbs was released from the hospital later that same day. The doctor gave Stubbs a note excusing her from work for 2 days, and she was told to take over-the-counter pain medication for pain.
On May 21, Stubbs returned to work and resumed her normal duties as the night supervisor at a Dillon's grocery store. Stubbs worked a full shift on May 21 and 22. Five days later, Stubbs went to a Topeka hospital emergency room seeking additional medical treatment for her back pain. Stubbs was given a prescription for two different medications and an appointment for an MRI. She was excused from work for 2 additional days.
On June 16, Stubbs had her MRI, and 2 days later, she went to an appointment with Dr. Jed McKee. Dr. McKee gave Stubbs a note excusing her from work for 2 weeks and recommended that she partake in some physical therapy.
In late June, Stubbs began physical therapy two or three times per week. Stubbs' physical therapy included an electrical stimulation treatment and various exercises. Stubbs found the physical therapy helpful, and when she concluded this therapy on July 14, she reported 85% improvement in her back pain. She reported having no pain in her legs, no pain or difficulty when lifting, and no problems sleeping. However, Stubbs did report that she still experienced some discomfort when she sat or stood for prolonged periods of time.
After completing her hospital physical therapy, Stubbs continued exercises on her own and continued to take ibuprofen. Stubbs stated that performing her exercises and using ibuprofen did not totally relieve her back pain but it did make the pain tolerable.
In August 2010, Stubbs sought additional medical treatment from Dr. McKee because she was still suffering lower back pain and the pain radiated down both of her legs. Stubbs also informed Dr. McKee that she was having difficulty sleeping due to the pain. Dr. McKee prescribed Prednisone for approximately 2 weeks.
In November 2010, Stubbs returned to Dr. McKee because she was still experiencing lower back pain. Dr. McKee referred her to Dr. Ian Kucera, an anesthesiologist at Stormont Vail Hospital in Topeka. Stubbs told Dr. Kucera about the pain in her lower back and legs. Dr. Kucera reviewed Stubbs' MRI from June 16, 2009, and recommended a series of steroid injections. Stubbs received the first injection in December 2010, the second in January 2011, and the final one in February 2011. Stubbs reported that the steroid shots helped relieve her pain and each successive injection provided increased relief. However, approximately 4 months after receiving her last steroid injection, Stubbs' back pain returned and she began experiencing pain on a regular basis.
Stubbs testified that her chronic back pain has adversely affected her ability to perform her job. Stubbs stated that before the accident she did not have any difficulty lifting heavy boxes but now she does. Stubbs explained that she now experiences back and leg pain while at work, and on certain days, she has difficulty walking.
Stubbs testified that she has difficulty sleeping because of the pain. Stubbs also testified that she has difficulty walking up and down stairs and it hurts to kneel or squat. She testified that her daily activities outside of work are now usually limited to sitting down and watching television. However, Stubbs admitted that before the accident, her daily activities usually consisted of sleeping and watching television.
At a trial solely on the issue of Stubbs' damages, she sought recovery for lost wages, medical expenses, and present and future non-economic damages for pain and suffering. Stubbs calculated her total medical expenses were $13,958.25. The jury entered a verdict in favor of Stubbs and awarded her $7,275.03 in medical expenses, $1,317.96 in lost wages, with no award for non-economic damages.
At a conference outside the presence of the jury, defense counsel recommended that the district court send the jury back for further deliberation on the issue of non-economic damages. Stubbs' counsel agreed. Accordingly, the district court then instructed the jurors that because they had awarded damages for medical expenses, they must also enter an award for some amount of non-economic damages. The jury deliberated for an additional 10 minutes and returned an award of $50 in non-economic damages.
Stubbs filed a motion for a new trial, which the court denied. Stubbs timely filed her notice of appeal.
An appellate court reviews a trial court's denial of a motion for a new trial under an abuse of discretion standard of review. City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007).
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, 284 Kan. at 421–22.
Stubbs challenges the adequacy of the jury's verdict because it only awarded her $7,275.03 in medical expenses, $ 1,317.96 in lost wages, and $50 in non-economic damages. Stubbs argues that the verdict was inconsistent because of the uncontroverted evidence. Stubbs also argues that the district court abused its discretion in denying her motion for a new trial. Stubbs' arguments on both issues are identical. Therefore, the disposition of all of the issues raised by Stubbs will turn on whether the jury's award was inconsistent, inadequate, or contrary to the evidence.
Verdict
Stubbs cites several cases that discuss the appropriate remedy in situations in which a verdict is inconsistent with the evidence, inadequate, or both. However, it is unclear whether Stubbs challenges both the consistency and the adequacy of the verdict, or whether she limits her challenge solely to the adequacy of the verdict. Nevertheless, if Stubbs is challenging the consistency of the jury verdict, this argument is without merit.
In Miller v. Zep Mfg. Co., 249 Kan. 34, 47, 815 P.2d 506 (1991), our Supreme Court stated that a “jury award limited to medical expenses that includes nothing for pain and suffering shown by uncontradicted evidence disregards the jury instruction and is contrary to the evidence, and a new trial is required.”
In this case, Stubbs' testimony about the pain and suffering she experienced after the accident was uncontroverted. Moreover, the jury's initial award was inconsistent because it awarded Stubbs $7,275.03 in medical expenses and $1,317.96 in lost wages but awarded nothing for pain and suffering. After noting this inconsistency, defense counsel suggested that the district court send the jury back to resume its deliberations and award some amount in non-economic damages. Stubbs' counsel concurred with this recommendation. The district court then ordered the jury to resume its deliberations and award some amount for non-economic damages.
The jury's modified verdict awarded Stubbs the same amounts for medical expenses and lost wages but included an award of $50 dollars in non-economic damages. This verdict was not inconsistent because it awarded an amount for non-economic damages. If the district court had not ordered the jury to resume its deliberations, and had the jury not amended its award to include non-economic damages, then the verdict would have been inconsistent and a new trial would be warranted. See Stowers v. Rimel, 19 Kan.App.2d 723, 727, 875 P.2d 1002 (1994).
Adequacy of the Jury Award
Stubbs was awarded the amount she requested in lost wages; however, she challenges the adequacy of the award for medical expenses and non-economic damages. Stubbs argues that the award of $7,275.03 for medical expenses was contrary to the uncontroverted evidence of the total cost of her medical treatment. Stubbs also challenges the adequacy of the award of $50 in non-economic damages. She argues that the jury's verdict must have been the product of passion or prejudice because the jury ignored her uncontroverted testimony about her pain and suffering.
At trial, Stubbs presented a document showing that her medical expenses totaled $13,958.25. That document was admitted without objection, and during cross-examination of Stubbs, defense counsel did not challenge the amount she requested.
Although the amount Stubbs requested for medical expenses went essentially uncontested, the jury was not required to award her the amount she sought. In Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P.2d 369 (1968), Furstenberg appealed the jury's general award of $765. The amount of this award coincided exactly with the amount of medical expenses requested by Furstenberg. Moreover, there was no dispute about Furstenberg's medical bills and both sides stipulated to the amount of her medical bills.
On appeal, our Supreme Court held that the amount of the jury's award did not appear to be the product of passion or prejudice and did not seem so inadequate as to shock the collective conscience of the court. The court surmised that the jury's award most likely included damages for both pain and suffering and lost earnings. The court also noted that the jury was not precluded from questioning the amount of damages being requested if, based upon the evidence, it appears that the jury could have had doubts about the reasonableness or the accuracy of the amounts requested. Furstenberg, 200 Kan. at 282–83.
In this case, the jury could have reasonably found that only a portion of Stubbs' medical treatment was attributable to the car accident. From May to July 2009, the total cost of the medical treatment received by Stubbs was $7,813.53. Although the cost of her medical treatments from May to July 2009 does not match the jury's award of $7,275.03, the two amounts are sufficiently similar; thus, it is reasonable to conclude that the jury found that Stubbs was entitled to receive an award for the medical treatment that she received for this period of time.
Stubbs' medical records indicate that Stubbs finished her physical therapy on July 14, 2009. At that time, Stubbs reported an 85% improvement in her condition. She further reported that she was not experiencing any pain in her legs, was not having any pain or difficulty in lifting, and was not having any sleep disturbances. It was not until August 2010, over a year after receiving her last medical treatment, that Stubbs again sought treatment for her back pain.
The jury could have reasonably found that the additional medical treatment Stubbs received in 2010 and 2011 was unrelated to the May 2009 car accident. If there is some evidence in the record to support a jury's verdict, then an appellate court will not disturb that finding on appeal. Unruh v. Purina Mills, 289 Kan. 1185, 1196–97, 221 P.3d 1130 (2009).
There was brief testimony about an incident in 2003 or 2004 where Stubbs suffered a back or abdominal injury. Stubbs characterized it as an abdominal injury while Potocnik's attorney tried to characterize it as a back injury. Also, the initial reading of Stubbs' MRI showed some slight calcification to the L4–5 disc space. Even though the doctor opined that the etiology of this condition was uncertain, his impression was that it was evidence of mild degenerative disc disease.
Stubbs also challenges the adequacy of the jury's award of $50 in non-economic damages. In the absence of a statute to the contrary, the general rule is that inadequacy of damages constitutes a ground for the granting of a new trial when a verdict is so inadequate as to indicate passion and prejudice. Henderson v. Kansas Power & Light Co., 188 Kan. 283, 290, 362 P.2d 60 (1961).
“Each case in which the adequacy, or inadequacy, of a verdict is called in question must be determined on the basis of its own facts. Amounts allowed in other cases can be illuminating only as they may tend to indicate the bounds beyond which a sound public conscience will permit no trespass.” Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 784–85, 402 P.2d 112 (1965).
Stubbs cites Burt v. Orr, 120 Kan. 719, 244 P. 1044 (1926), for the proposition that an award of nominal damages is an inadequate verdict warranting a new trial. In Burt, a young woman was mistaken for another person and was arrested, questioned, escorted in public to the police station, interviewed by the chief detective, and subsequently released after the police concluded they had arrested the wrong person. The young woman testified that after her arrest she had difficulty obtaining work as a model and that other individuals had asked her about her arrest. The jury awarded the young woman $ 1 in damages, and she appealed. On appeal, our Supreme Court reversed the verdict, concluding that the evidence in the case was sufficient to have warranted a verdict for substantial damages. Burt, 120 Kan. at 721.
Burt is of no assistance to Stubbs because the jury in that case awarded only $1 in damages. The $1 award was ostensibly intended to cover any damage for mental suffering and humiliation, damage to the young woman's reputation in the community, and any negative impact that the false arrest had on her career. Burt, 120 Kan. at 721. The court addressed whether the award of $1 in damages was adequate to compensate for all the harm the young woman suffered, but it did not address the specific question of whether the award was adequate compensation for non-economic damages. In this case, Stubbs' total damage award was not nominal. Stubbs received $7,275.03 in medical expenses, $1,317.96 in lost wages, and $50 in non-economic damages. Her total award of $8,642.99 is not a nominal damage award when contrasted with the $1 damage award that the young woman received in Burt.
Stubbs also cites Lutz v. Peine, 209 Kan. 559, 498 P.2d 60 (1972), to support her argument that the award of non-economic damages was inadequate. In that case, Lutz suffered injuries in a car accident and brought a personal injury action against the defendant. Lutz' uncontradicted medical expenses and lost wages amounted to $5,445.50 but the jury awarded her $5,000 in damages. Our Supreme Court held that the jury verdict was inconsistent because it failed to award Lutz any damages for pain, suffering, or temporary or permanent injuries caused by the accident. Lutz, 209 Kan. at 564.
Lutz does not support Stubbs' argument because the court concluded that the jury's damages award was an inconsistent verdict; the jury awarded Lutz damages for medical expenses and lost wages but awarded nothing for pain, suffering, and injuries. As noted previously, the appropriate remedy for an inconsistent verdict is reversal of the jury's verdict and a remand for a new trial. See Miller, 249 Kan. at 47. In the instant case, the jury's verdict was not inconsistent because it awarded Stubbs damages for medical expenses, lost wages, and non-economic damages. Stubbs' complaint on appeal is not that the jury failed to award any non-economic damages but rather that the $50 award of non-economic damages is inadequate.
Finally, there is some authority to support the adequacy of the jury's award of $50 in non-economic damages. In Stowers, Stowers sought recovery for injuries Stowers suffered in a car accident with the defendant. The defendant admitted liability, and a trial was held solely on the issue of damages. The jury initially awarded Stowers $4,221 for medical expenses, but it did not award any non-economic damages. After being told that the jury must award some amount in non-economic damages, the court ordered the jury to resume its deliberations. The jury returned with an award of $250 for pain and suffering and $250 for mental anguish, and Stowers appealed.
On appeal, a panel of this court addressed whether it was appropriate for the trial court to order the jury to resume deliberations when the jury initially awarded Stowers damages for medical expenses but awarded nothing in non-economic damages. However, the panel also appeared to allude to the fact that the jury's award of $500 in non-economic damages was not inadequate. The panel stated that it was “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.” Stowers, 19 Kan.App.2d at 729.
In the instant case, the jury's award seems to coincide with the medical treatment that Stubbs received from May to July 2009. If the jury found that Stubbs was only entitled to damages for the pain and suffering she experienced during that time period, then it would be hard to conclude that an award of $50 is inadequate. Therefore, there is no evidence to support the allegation that the jury's award of non-economic damages was inadequate or the product of passion or prejudice.
Accordingly, Stubbs has not demonstrated that the jury's award of $7,275.03 for medical expenses and $50 in non-economic damages was inadequate or that the jury made these awards while under the influence of passion or prejudice.
Jury Misconduct
Stubbs contends that the jury verdict must be set aside and a new trial ordered because the jury considered whether health insurance paid any of Stubbs' medical expenses. Stubbs asserts that the jury's consideration of health insurance denied her a fair trial. She further asserts that that she was prejudiced by the jury's consideration of health insurance because the award of $7,275.03 in medical expenses, just over half of the amount requested, was a compromise verdict entered under the assumption that insurance likely covered a substantial portion of Stubbs' medical bills.
A party is not entitled to a new trial based upon mere allegations of jury misconduct. It will be presumed that a jury properly reached an adequate and appropriate calculation of damages unless there is some evidence to demonstrate that the jury consciously conspired to undermine the jury process by ignoring the instructions. City of Mission Hills, 284 Kan. at 422. A new trial is appropriate only when there has been an affirmative showing that the substantial rights of a party have been prejudiced by jury misconduct. Domann v. Pence, 183 Kan. 135, 140, 325 P.2d 321 (1958).
Stubbs' belief that the jury considered health insurance during its deliberations stems from a question the jury posed to the district court during deliberations. Specifically, the jury asked whether any medical bills were paid by insurance. The district court responded by instructing the jury that it must decide the case on the evidence already presented. During the course of the trial, neither attorney mentioned insurance. The jury did not hear any evidence about medical insurance.
Evidence that a party was covered by insurance is inadmissible at trial. See Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 629, 244 P.3d 642 (2010). Even the mere uttering of the word insurance is forbidden during a trial because the mention of insurance may encourage juries to decide cases on inadmissible and inappropriate grounds. Stowers, 19 Kan.App.2d at 725. Furthermore, when the subject of insurance is inadvertently interjected into a proceeding, a trial court may remedy the error by issuing a curative instruction. Unruh, 289 Kan. at 1199.
Stubbs has not made an affirmative showing that the jury considered health insurance during its deliberations. Stubbs makes an unsupported assumption that because the jury asked whether any medical bills were paid by health insurance, that the jury must have taken health insurance payments into consideration when it rendered its verdict. Stubbs' argument requires this court to speculate about the jury's thought-processes during deliberations. It is not the proper function of an appellate court to speculate about a jury's deliberations, or delve into the thought-processes engaged in by the jury during its deliberations. See State v. Beach, 275 Kan. 603, 619, 67 P.3d 121 (2003).
The district court properly instructed the jury that it must decide the case on the evidence presented. A jury is presumed to have followed a court's instruction when a court instructs a jury that it must decide a case solely on the evidence presented. State v. Davidson, 264 Kan. 44, 55, 954 P.2d 702 (1998).
Finally, in her motion for a new trial, Stubbs argued that the jury's verdict was inconsistent, inadequate, or rendered under the influence of passion or prejudice. However, she fails to prove her claim. Therefore, the district court did not abuse its discretion in denying her motion for a new trial.
Affirmed.