Avery v. Ward

• Citation: 934 S.W.2d 516,326 Ark. 830
• Decision Date: 16 December 1996
• Docket Number: No. 95-880,95-880
• Parties: Richard AVERY and Carroll Truck Lines, Appellants, v. Willie WARD, Jr., Appellee,
• Court: Supreme Court of Arkansas

Page 516

934 S.W.2d 516

326 Ark. 830

Richard AVERY and Carroll Truck Lines, Appellants, v. Willie WARD, Jr., Appellee,

No. 95-880.

Supreme Court of Arkansas.

Dec. 16, 1996.

Julia L. Busfield, Little Rock, for Appellant.

J. L. Wilson, Helena, for Appellee.

JESSON, Chief Justice.

The appellants, Richard Avery and Carroll Truck Lines, appeal from a judgment against them in the amount of $100,000. They advance four bases for reversal: (1) the trial court erred in denying their motion for directed verdict because there was no substantial evidence to support the verdict; (2) the trial court erred in admitting testimony and medical bills of appellee Willie Ward, Jr., without a proper foundation; (3) the trial court erred in denying Avery's motion for a new trial based on error in the assessment of damages; and (4) the trial court erred in refusing to allow Avery to use a peremptory challenge to strike a prospective juror. We agree with appellants' second contention and reverse and remand for a new trial.

On April 26, 1986, Richard Avery was an employee of Carroll Truck Lines and was driving a tractor-trailer truck. Ward testified that he had slowed his pickup truck to allow a car ahead of him to turn when he was hit from behind by Avery's truck. As a result of the collision, a screwdriver fell off either Ward's dashboard or the truck seat and punctured him on his ankle, causing infection and an abscess to develop. He also claimed back and neck injuries.

Ward's wife, Betty Ward, contacted Dr. Matthew Wood, his primary physician, and scheduled an appointment for some eight to ten days after the incident. Ward was hospitalized on May 13, 1986, and remained there for sixteen days. At the hospital, Ward fell while trying to leave his bed to go to the bathroom. He experienced a hernia, which led to an operation. His total medical bill for the hospital stay was $7,951.63. Ward, who had previously suffered from diabetes, hypertension, and back problems, incurred additional medical expenses while in the hospital. During his sixteen-day stay, he was tested for hemorrhoids and a rash and received ophthalmology and urology examinations.

Ward sued Avery and Carroll Truck for negligence and sought to collect on all medical expenses. Following trial, the jury returned a general verdict in Ward's favor in the amount of $100,000. Subsequently, the trial court refused to grant a motion for a new trial based in part on the improper admission into evidence of certain medical expenses.

I. Sufficiency of the Evidence

Avery and Carroll Truck first contend that there was no substantial evidence to support the verdict. We disagree. The appellants correctly state our standard of review for denial of a directed verdict. A directed verdict for a defendant is proper only when there is no substantial evidence from which the jurors as reasonable individuals could find for the plaintiff. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986), quoting St. Louis S.W. Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W.2d 334 (1967). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or the other. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993); Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984). Evidence introduced by the plaintiff, together with all reasonable inferences therefrom, is examined in the light most favorable to the plaintiff when a motion for directed verdict is made by the defendant. See Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993); Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992).

We will not sustain a verdict that is based on speculation and conjecture. Muskogee Bridge Co. v. Stansell, supra. Here, however, that is not the case. Ward testified that he had slowed and signaled and that Avery's tractor-trailer rig ran into the back of his pickup truck. There is certainly sufficient proof, based on Ward's testimony, that Avery was not keeping a proper lookout and, as a result, was negligent. The trial court appropriately denied the motion for a directed verdict and allowed the matter to go to the jury for determination.

II. Foundation for Medical Bills

Avery and Carroll Truck next claim that there was error in admitting medical records and testimony into evidence. They contend that Ward suffered from back and neck pain before the accident as well as a recurring ulcerated condition on his ankle. They further claim that there was no causal connection between the automobile accident and the various medical treatments he received while in the hospital, and that the jury was inappropriately permitted to consider medical expenses as damages without a proper foundation being laid.

A party seeking medical damages has the burden of proving the reasonableness and necessity for that party's medical expenses. Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984). In that case, we discussed the basic principles underlying the admission of medical evidence:

Our decisions recognize a distinction between proof of reasonableness and proof of necessity. We have held that evidence of expense incurred in good faith is some evidence that the charges were reasonable. However, evidence of expense incurred alone is not sufficient to show that charges were causally necessary. Yet, the testimony of the injured party alone, in some cases, can provide a sufficient foundation for the introduction of medical expenses incurred. For example, if a litigant suffered a specific injury in an accident and was immediately taken to a hospital emergency room for treatment of only that specific injury, the injured party's testimony would be sufficient to establish the necessity of the medical expense as a result of the accident. However, expert testimony would normally be required to prove the necessity of the expense when. . . expenses for hospital tests were incurred many months after the accident, none of the physicians in attendance immediately after the accident referred the litigant either to the admitting doctor or to the hospital, and the expenses on their face do not appear to be related to the accident.

284 Ark. at 199, 680 S.W.2d 700 (emphasis added).

Avery and Carroll Truck first complain that Ward's ulcerated ankle was a preexisting and recurring condition. The medical testimony of Dr. Larry Burke, a vascular surgeon, and Dr. Nicholas Economides, a plastic and reconstructive surgeon, who were two of Ward's treating physicians, substantiated this. As a result, the appellants question whether the falling screwdriver merely exacerbated Ward's prior condition. Moreover, they underscore that even Ward could not be certain that the vehicular accident caused his ulcerated condition to worsen.

The fact that Ward was a diabetic, suffered from hypertension, had a history of back problems, and had a prior ulcer on his ankle that recurred from time to time does not rid the appellants of liability. It simply means that Ward qualified as an "eggshell plaintiff," that is, one who was susceptible to enhanced injury by virtue of an existing condition. See Primm v. U.S. Fidelity and Guaranty Ins. Corp., 324 Ark. 409, 922 S.W.2d 319 (1996). Furthermore, Ward testified that the rear-end collision "shook me up pretty bad and knocked everything off the dashboard and everything off the seat onto the floor." He added that after the accident; his back and neck were hurting and "then this screwdriver object had fallen onto [his] right leg and bumped [his] left leg." Ward testified that the screwdriver punctured his leg. He stated that after the accident, his wife washed, salved, and bandaged his leg and that his back was "steadily hurting" and got worse. He told both Dr. Economides and Dr. Burke that the ulcerated condition on his leg was due to the accident.

We have held that matters of causation are questions of fact for the jury to decide. See, e.g., First Commercial Trust Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996); see also Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991). The same holds true for matters of credibility. Diamond State Towing Co. v. Cash, 324 Ark. 226, 919 S.W.2d 510 (1996). Avery and Carroll Truck argue long and hard, as they did at trial, that the element of causation is missing with respect to the medical treatment for Ward's back, neck, and leg. We conclude, nonetheless, that an adequate foundation was laid for the treatment of these conditions and that ultimately the question of causation was one for the jury. There was no reversible error committed on this point.

We reach a different conclusion regarding the hernia operation performed on Ward while he was hospitalized. Avery and Carroll Truck question the causal relationship of these medical expenses to the accident. Ward testified regarding the hernia:

The hernia happened to me while I was in the hospital. Whether it had any bearing on this accident or not, I don't know. I know it happened in the hospital.... [I] didn't fall on the floor, I eased down, but I mean, I had to go down. I couldn't stand up.... I got out of bed, and it hurt me so, I just went on to the floor, and they came and picked me up.

At the close of Ward's evidence, Avery and Carroll Truck moved for a directed verdict on the sufficiency of the evidence and a partial directed verdict on the failure to prove medical bills with reasonable certainty. They asserted that only a few expenses by Dr. Economides were sufficiently proved and tied into the accident. They specifically complained about the hernia expenses, which included operating room costs, anesthesia and recovery room fees, and an anesthesiologist bill, and totalled $971.40. The trial court, in denying the motion for a partial directed verdict, admitted that it did not remember any testimony from the treating physicians on the hernia and was concerned about how one could...