from the Iowa District Court for Black Hawk County, David P.
Grimm appeals the jury's verdict in a tort suit based on
a vehicle accident. REVERSED AND REMANDED FOR NEW TRIAL.
Nardini of Nardini Law Office, Cedar Falls, for appellant.
D. Goudelock, Jr. of Idleman & Goudelock, Des Moines, for
by Danilson, C.J., and Potterfield and Bower, JJ.
DANILSON, Chief Judge.
Grimm appeals the jury's verdict in this
vehicle-collision suit against driver Carli Chilcote and the
owner of the vehicle, Timothy Chilcote.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
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.
Background Facts and Proceedings.
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.
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
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 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.
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
Scope and Standard of Review.
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.
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).
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.
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).
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).
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).
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.
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.
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
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.
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
began seeing a licensed massage therapist at Allen Hospital,
Pam McKinney, on January 31, 2013. 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.
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.
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
attended sessions with Dr. Reyerson twenty-five times at $70
per session between July 17, 2013, and March 5, 2014,
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.
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