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Richard D. Rath Jr v. Brianna J. Mathias

January 9, 2013

RICHARD D. RATH JR., PLAINTIFF-APPELLANT,
v.
BRIANNA J. MATHIAS, WILLIAM BALLENSKY AND ANN BALLENSKY, DEFENDANTS-APPELLEES.



Appeal from the Iowa District Court for Muscatine County, Thomas G. Reidel, Judge.

The opinion of the court was delivered by: Tabor, J.

Richard Rath appeals following retrial of his damages for future medical expenses. AFFIRMED.

Heard by Potterfield, P.J., Tabor, J., and Huitink, S.J.*fn1

Following a personal injury trial on damages arising from a motor vehicle accident, the district court granted remittitur or a conditional new trial on the question of Richard Rath's future medical expenses. Rath rejected the remittitur, opting instead for a new trial on the damage issue. Following retrial, Rath appeals the court's grant of remittitur. He also challenges the district court's evidentiary rulings and the denial of his request for a continuance.

We find Rath's challenge to the court's remittitur ruling is untimely. Rath did not file a notice of appeal until after the conclusion of the retrial on the future-medical-expense damages. We also find the district court properly exercised its discretion in admitting evidence regarding the permanency of his injuries and their causation during the retrial, and in allowing the defendants to show a surveillance video to support their expert's opinion. Finally, the court acted within its discretion in denying Rath's motion for a continuance. Accordingly, we affirm.

I. Background Facts and Proceedings

On July 10, 2007, vehicles driven by Rath and Brianna Mathias collided in Muscatine County. Mathias, who was driving a Dodge Dakota truck owned by her mother and stepfather, Ann and William Ballensky, pulled into an intersection in front of the GMC semi-tractor trailer operated by Rath. Mathias does not dispute she failed to yield the right of way and was at fault for the collision.

Rath filed a petition against Mathias and the Ballenskys, seeking monetary damages for past and future medical expenses, past and future pain and suffering, past and future loss of earnings, and past and future loss of mind and body. The defendants admitted liability, so the only issue to settle at trial was the amount of Rath's damages.

In his interrogatory answers, Rath asserted he had incurred the following damages:

a. Past Medical Expenses $3845.30

b. Future Medical Expenses $24,000.00

c. Loss of Earnings/Earning Capacity $0

d. Loss of Future Earning/Earning Capacity $0

e. Loss of Full Mind and Body, Past $200,000.00

f. Loss of Full Mind and Body, Future $200,000.00

g. Physical and Mental Pain and Suffering, Past $200,000.00

h. Physical and Mental Pain and Suffering,

Future $200,000.00

i. Property Damage Repair/Market Value of Semi-Tractor and Trailer $15,000 to $20,000.00

j. Storage and Towing Fees Est. $50,000.00 Rath waived his claim for past medical expenses before trial.

At trial, Rath introduced the deposition of Dr. Jerome Lerner into evidence. Dr. Lerner is board certified in physical medicine and rehabilitation. The doctor testified that after reviewing Rath's medical records and examining him, he determined to a reasonable degree of medical certainty that Rath's injuries were caused by the accident. Dr. Lerner addressed the fact Rath had participated in skydiving for fifteen years, but opined that activity would not in and of itself cause damage to the spine. He also testified about radiofrequency ablation, a procedure used to numb painful nerves and provide longer relief than the short-term medical branch block. Dr. Lerner testified that in radiofrequency ablation, "the nerve is ablated or basically completely knocked out and that can last for up to a year or a year and a half." He testified the estimated cost of the procedure for Rath is "going to range between $4,000 and $20,000, depending on how he responds."*fn2

The defendants introduced into evidence portions of a surveillance video taken of Rath by a private investigator. The video shows Rath climbing up and down scaffolding, squatting for long periods of time, lifting items, and moving about freely without any evident pain or discomfort.

Following trial, the jury found Rath suffered the following damages:

1. Future medical expenses. $70,000

2. Loss of function of the body in the ...


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