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Grimm v. Chilcote

Court of Appeals of Iowa

July 19, 2017

JEANNE ELIZABETH GRIMM, Plaintiff-Appellant,

         Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.

         Jeanne Grimm appeals the jury's verdict in a tort suit based on a vehicle accident. REVERSED AND REMANDED FOR NEW TRIAL.

          Jay A. Nardini of Nardini Law Office, Cedar Falls, for appellant.

          Gary D. Goudelock, Jr. of Idleman & Goudelock, Des Moines, for appellees.

          Heard by Danilson, C.J., and Potterfield and Bower, JJ.

          DANILSON, Chief Judge.

         Jeanne Grimm appeals the jury's verdict in this vehicle-collision suit against driver Carli Chilcote and the owner of the vehicle, Timothy Chilcote.[1]Jeanne contends the $7027 verdict is inadequate, fails to do substantial justice between the parties, and asserts an error in giving a jury instruction not supported substantial evidence resulted in prejudice.

         Jury instruction 18 was not supported by the evidence and prejudicially introduced an improper legal theory to the jury. A new trial on the scope and amount of damage caused by the admittedly negligent conduct is required.

         I. Background Facts and Proceedings.

         At about noon on Saturday, November 17, 2012, Jeanne was driving her 2003 Chevy S10 four-door extended cab pickup, which weighed about 3600 pounds. Jeanne had been traveling about forty-five miles per hour but had to slow to a near stop to allow the vehicle in front of her to turn into a private drive. Jeanne was then rear-ended by sixteen-year-old Carli, who was driving her father's 1990 Chevrolet K1500 pickup truck, which weighed about 4200 pounds and had a snowplow-mount attachment on the front of the truck and a lift gate on the rear. Carli believed she was traveling about ten miles per hour at the time of impact. When her father, Timothy, arrived at the scene, he observed the two trucks had come to rest about two feet apart.

         Before the collision, Jeanne was physically active, had full use of her body, and could lift heavy items without pain. Jeanne described the impact of being hit as "very jarring, " "[v]ery startling, " and noted "it threw me forward and my seatbelt caught and my head kind of snapped back and hit the head rest." Jeanne stated the collision moved her truck forward about two feet. Jeanne did not have any pain immediately following the impact. Later that evening, however, Jeanne developed a headache and neck pain. By the following morning (Sunday) the headache had worsened and Jeanne described her neck as "very stiff Sunday morning . . . and just got progressively worse during the day." She has had intermittent pain and treatment since. The cost to repair Jeanne's truck was $2063.64.[2]

         Jeanne filed suit against Carli and Timothy for personal injuries suffered by Jeanne arising out of the November 17, 2012 motor-vehicle collision. The Chilcotes did not deny liability but contested the extent of Jeanne's damages. The case was tried to a jury between March 8 and March 14, 2016. Jeanne's objection to jury instruction 18[3] was overruled. The jury returned a verdict in favor of Jeanne for $7027, awarding $1625 for past pain and suffering, $2000 for the "past loss of fully body [sic], " $3000 in past medical expenses, and $402 in past lost wages. They awarded no future damages.

         Jeanne filed a motion for a new trial, contending the damages were inadequate and failed to do substantial justice. She also argued instruction 18 should not have been given and was prejudicial. The motion for new trial was overruled. Jeanne appeals.

         II. Scope and Standard of Review.

         Our review of a district court's ruling on a motion for new trial depends upon the grounds raised in the motion. Bryant v. Parr, 872 N.W.2d 366, 375 (Iowa 2015). If the motion for new trial was based upon a discretionary ground, we review the court's ruling for an abuse of discretion. Clinton Physical Therapy Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). On the other hand, if the motion was based on a legal question, we review the court's ruling for errors of law. Id.

         We review challenges to jury instructions for the correction of errors at law. Sleeth v. Louvar, 659 N.W.2d 210, 213 (Iowa 2003). We will not reverse a verdict due to an erroneous instruction unless the error was prejudicial. Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). Instructions may be considered erroneous if they contain a material misstatement of the law, are not supported by the evidentiary record, or are conflicting and confusing. Id. at 575. "When we weigh the sufficiency of the evidence to support a requested instruction, we review the evidence in the light most favorable to the party seeking the instruction." Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 824 (Iowa 2000).

         III. Discussion.

         Jeanne asserts the trial court abused its discretion in denying her motion for new trial because the jury awarded inadequate damages, the verdict failed to administer substantial justice, and the verdict was not supported by sufficient evidence. She also contends the court erred in giving instruction 18. We find the two issues are intertwined and not easily discussed separately.

         A. Motion for New Trial. A new trial may be granted under Iowa Rule of Civil Procedure 1.1004(4) where there is "[e]xcessive or inadequate damages appearing to have been influenced by passion or prejudice." "The district court has considerable discretion in ruling upon a motion for new trial based upon the ground that the verdict was inadequate." Fisher v. Davis, 601 N.W.2d 54, 57 (Iowa 1999).

         A district court also has broad, but not unlimited, discretion to determine whether a jury's verdict effectuates substantial justice between the parties. Iowa R. App. P. 6.904(3)(c); see also Estate of Hagedorn ex. rel. Hagedorn v. Peterson, 690 N.W.2d. 84, 87 (Iowa 2004). We review the trial court's decision about whether the verdict administers substantial justice for an abuse of discretion. Hagedorn, 690 N.W.2d at 87. A court abuses its discretion when its ruling is "clearly untenable or to an extent clearly unreasonable." State v. Wilson, 878 N.W.2d 203, 210-11 (Iowa 2016). An erroneous application of the law by the district court is clearly untenable. Id. at 211.

"If uncontroverted facts show the amount of the verdict bears no reasonable relationship to the loss suffered, the verdict is inadequate." Thus, the adequacy of a damage award depends on the facts of the particular case. If the damages are inadequate, the trial court must either grant a new trial or, if appropriate, grant an additur.

Pexa v. Auto Owners Ins., 686 N.W.2d 150, 162 (Iowa 2004) (citations omitted).

         There is a distinction between proof of the fact that damages have been sustained and proof of the amount of those damages. Olson v. Nieman's Ltd., 579 N.W.2d 299, 309 (Iowa 1998). In Iowa, the plaintiff bears the burden of establishing a claim for damages with some reasonable certainty and for demonstrating a rational basis for determining their amount. Conley v. Warne, 236 N.W.2d 682, 687 (Iowa 1975); Hammes v. JCLB Props., LLC, 764 N.W.2d 552, 558 (Iowa Ct. App. 2008).

         Jeanne notes she had never injured her neck or her right shoulder prior to November 17, 2012, nor had she been in a motor vehicle collision. Her physician, Dr. Matthew Smith, indicated he had seen Jeanne occasionally over a two-year period prior to the collision and Jeanne did not present complaints of neck or shoulder pain. Jeanne then saw Dr. Smith on Monday, November 19, 2012. Objective notes state she had a good range of motion of her neck with some tightness (muscle spasm) and a lot of diffuse musculoskeletal tenderness along her neck muscles. His assessment was "neck pain/MVA [motor vehicle accident]/whiplash." He explained to Jeanne the method by which one suffers a whiplash type injury in a rear-end collision and told her to take three ibuprofen at a time three to four times a day and use ice on her neck for two weeks followed by heat for two weeks. He prescribed a muscle relaxant, Flexeril, for her to take, and told her to come back in two weeks.

         Dr. Smith next saw Jeanne on November 30 for follow up of her neck pain, and she was still having sharp pain in her neck and right shoulder. He ordered her to undergo physical therapy at Accelerated Rehabilitation where she started on December 5. Dr. Smith hoped a course of physical therapy would clear up Jeanne's problem, noting approximately ninety percent of patients who have neck pain will get a good resolution in six weeks, about ten percent do not.

         On December 6, 2012, after her first physical-therapy treatment, Jeanne was seen by Dr. Smith's partner, Dr. Musgrave. Jeanne reported her physical- therapy treatment the night before had left her with a very painful and stiff neck. Physical examination showed very limited range of motion of her neck and a very tender area right at C7, at the base of her neck, with muscle spasms in her right side neck muscles. Dr. Musgrave ordered an X-ray of her neck, prescribed a narcotic pain pill, Vicodin, and told her to not have physical therapy for a few days. Her X-ray was negative for any fracture.

         Dr. Smith next saw Jeanne on December 13 and told her to continue with her conservative treatment of muscle relaxers, anti-inflammatories, pain pills, and physical therapy. If she had no improvement, then he would consider ordering an MRI, which would show more detail than an X-ray.

         Dr. Smith again saw Jeanne on January 16, 2013. Jeanne reported she was doing a little better and having some good days with no pain. She had one more therapy session left with Accelerated Rehabilitation. Dr. Smith encouraged her to get off the pain medications and the muscle relaxers, which could be masking the pain, and to see how she felt and to come back in six months or sooner if she continued to have pain. He also referred her to a massage therapist to try and loosen up her muscles. He said muscle spasms are nothing a person can fake.

         Jeanne began seeing a licensed massage therapist at Allen Hospital, Pam McKinney, on January 31, 2013.[4] McKinney noted Jeanne had much decreased range of motion, especially on the right side, and very hypertonic tissues. McKinney testified a normal muscle is able to contract and then relax, but when the muscle is hypertonic it contracts and stays contracted. Jeanne went to McKinney about once a week and would get good relief from each treatment but the relief was temporary.

         Near the end of March, Jeanne tried extending the massages to every two weeks, but Jeanne's neck muscles were even more knotted and hypertonic. Jeanne found it more helpful to be seen once a week, which increased the cost for her. McKinney testified there was an area at the base of Jeanne's neck that when touched produced a "zinging" shock sensation. McKinney opined the zinging sensation is caused by a nerve being pressured by the hypertonic muscles. McKinney was herself in a car accident on May 30, 2013, and could not treat Jeanne so she referred her to a physical therapist, Dr. Jodi Reyerson.

         On June 11, 2013, Jeanne went to see Dr. Smith complaining of neck pain. His assessment was continued pain status post motor-vehicle accident. He referred her to get an MRI of her neck, which indicated some mild arthritis in her neck and a mild bulging disc at C5-C6. Dr. Smith also prescribed a second course of physical therapy at Accelerated Rehabilitation, which Jeanne attended from June 12 to August 1, 2013.

         Jeanne attended sessions with Dr. Reyerson twenty-five times at $70 per session between July 17, 2013, and March 5, 2014, [5] and five times at $80 per session between September 2015 and February 2016. Dr. Reyerson does not accept insurance, and Jeanne paid for treatment out of pocket.

         Dr. Reyerson treats a client's joints and nervous system. When Dr. Reyerson first saw Jeanne in July 2013, she had limited mobility of her neck, a forty-percent deficit of her cervical range of motion, "pretty significant pain" at the end of the range, and a "really rigid" neck. Testing indicated nervous system irritability and lymphatic congestion, ...

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