Bates v. Design of the Times, Inc.

• Court: Nebraska Court of Appeals
• Writing for the Court: SIEVERS.
• Citation: Bates v. Design of the Times, Inc., 610 N.W.2d 41, 9 Neb. App. 260 (Neb. App. 2000)
• Decision Date: 09 May 2000
• Docket Number: No. A-99-673.,A-99-673.
• Parties: Patti BATES, appellant, v. DESIGN OF THE TIMES, INC., a Nebraska corporation, appellee.

610 N.W.2d 41

9 Neb.App. 260

Patti BATES, appellant, v. DESIGN OF THE TIMES, INC., a Nebraska corporation, appellee.

No. A-99-673.

Court of Appeals of Nebraska.

May 9, 2000.

Steven D. Davidson, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, for appellant.

Michael G. Mullin, of McGrath, North, Mullin & Kratz, P.C., Omaha, for appellee.

IRWIN, Chief Judge, and SIEVERS and MOORE, Judges.

SIEVERS, Judge.

In this negligence action, Patti Bates alleges she suffered a brain stem stroke because her neck was hyperextended during a hair rinsing procedure at a beauty salon, Design of the Times, Inc. (DOTT). Bates claims that the DOTT employee who rinsed her hair failed to notice and then relieve her discomfort while she was in a reclining position with her head over a sink and that as a result, she suffered an occluded vertebral artery, which later developed into a stroke. The Douglas County District Court sustained DOTT's motion for summary judgment, because Bates' expert medical evidence was insufficient to create an issue of fact regarding causation.

I. BACKGROUND

On March 11, 1995, Bates went to DOTT to get a permanent in her hair. As part of the procedure, a chemical solution was rinsed out of Bates' hair by a DOTT employee, M'Lissa Golden. Golden directed Bates to lean back in a chair with her head extended, her face up, and her head over a sink. Bates experienced some discomfort while over the sink, and after approximately 1 to 2 minutes, she lifted her head to relieve the discomfort. Golden placed her hand on Bates' forehead and said, "`You're okay,'" as she pushed Bates' head back over the sink. Bates again felt discomfort, and after 1 or 2 minutes, she again lifted her head from over the sink. When Bates lifted her head a second time, Golden asked, "What are you doing?" Bates told Golden she was lifting her head so that Golden could rinse the nape of her neck, to which Golden responded that she had already rinsed that area. The rinsing procedure lasted from 5 to 8 minutes. When Bates stood up from the chair at the sink, she felt momentary dizziness. Bates testified that she said, "`Whoooooh,'" because of her dizziness, and that Golden assisted Bates back to a styling chair.

The record also shows that Bates experienced dizziness and nausea during the day, prior to her hair appointment. The evening after the appointment, Bates felt "very lethargic and more tired" than usual. During lunch the following day, Bates began experiencing a severe headache, pain in her right ear, double vision, and facial drooping. She was taken to the hospital where she was diagnosed with a severe migraine and released. The following morning, Bates was seen by Dr. Ronald Cooper, a neurologist. Cooper admitted Bates to the hospital, where she was eventually diagnosed as having suffered a brain stem stroke.

Cooper testified as a medical expert, and his testimony is relied upon by Bates as evidence of causation. During his deposition, Cooper was asked several times, in various ways, if he had an opinion to a reasonable degree of medical certainty as to whether Bates' stroke was causally related to the rinsing procedure she received at DOTT. Cooper's consistent response was that the cause of the stroke "most likely was related to head and neck positioning" during the rinsing procedure at DOTT. Bates also relies on the expert testimony of Dr. William Shiffermiller. Shiffermiller opined that there was a "likelihood" that the rinsing procedure was at least "partially responsible" for Bates' stroke.

DOTT moved for summary judgment, which the Douglas County District Court sustained. The court found that "the opinions of the doctors examined in the context of their entire testimony are not sufficiently definite and relevant to provide a basis of fact for the fact finder's determination of an issue or question." The court also found there was no evidence that the manner in which Bates' hair was rinsed "was done contrary to the standards of the industry" or that the length of the rinsing procedure was the cause of her injury. Bates timely filed this appeal. Other facts are provided as needed in the analysis below.

II. ASSIGNMENT OF ERROR

Bates' sole assignment of error is that the district court erred in granting DOTT's motion for summary judgment.

III. STANDARD OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Chelberg v. Guitars & Cadillacs, 253 Neb. 830, 572 N.W.2d 356 (1998); Farmers Union Co-op. Ins. Co. v. Allied Prop. & Cas. Ins. Co., 253 Neb. 177, 569 N.W.2d 436 (1997).

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Chelberg, supra; Schendt v. Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997).

The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. Chelberg, supra; Farmers Union Co-op Ins. Co., supra.

IV. ANALYSIS

The district court's order sustaining DOTT's summary judgment motion addresses the issue of causation, finding that the medical experts' testimony was not sufficiently definite to create a factual issue concerning causation. Bates argues that the district court weighed the evidence rather than evaluated the evidence to determine whether a factual issue existed. Cooper stated his opinion on medical causation several times during his deposition, in response to multiple inquiries on both direct and cross-examination. While Cooper did state once that "the positioning of [Bates'] head and neck with medical certainty caused injury to the right vertebral artery that subsequently became occluded," his opinion, considering his testimony in its entirety, is that the "most likely" cause of Bates' stroke was the positioning of her head and neck during the rinsing procedure. Nebraska law does not require Cooper's expert medical opinion to be couched in the magic words "to a reasonable degree of medical certainty." See Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). Expert medical testimony must be sufficient, when examined in its entirety, to establish the crucial causal link between the plaintiff's injuries and the defendant's negligence. Id., citing Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 (1998), and Shahan v. Hilker, 241 Neb. 482, 488 N.W.2d 577 (1992). "Medical expert testimony regarding causation based upon possibility or speculation is insufficient; it must be stated as being at least `probable,' in other words, more likely than not." Doe, 255 Neb. at 975,587 N.W.2d at 893. Cooper stated that in his expert opinion, the "most likely" cause of Bates' stroke was the positioning of her head and neck during the rinsing procedure. He also testified that there was a high likelihood that the vertebral artery may have been traumatized by the positioning. Finally, he stated that the positioning of her head "certainly caused injury to the right vertebral artery" and the occlusion of that artery caused her stroke. Viewing Cooper's testimony as a whole, it is legally sufficient evidence of the causation of the stroke. See Rogers v. Spain, 388 S.W.2d 518, 521 (Mo.App.1965) (testimony of physician that plaintiff's pain "`most likely'" would be permanent was not speculative but was to reasonable degree of medical certainty that injuries would be permanent). Therefore, the trial court erred in concluding that the medical testimony of causation was insufficient.

However, the fact that the trial court erred in finding insufficient evidence of causation does not end our analysis. In order to establish Bates' negligence claim, she must provide evidence of each material element—duty, breach, causation, and damages. See Merrick v. Thomas, 246 Neb. 658, 522 N.W.2d 402 (1994). In addition to finding insufficient evidence of causation, the trial court indicated that evidence of breach was lacking. Having determined that there was sufficient medical evidence of causation to withstand the motion for summary judgment, we next consider whether the record contains sufficient evidence to create a genuine issue of material fact for the jury's determination on the elements of duty and breach. We note that the record contains sufficient evidence of damages obviating any discussion of that element.

1. EVIDENCE OF DUTY

The law requires a person "to use due care so as not to negligently injure another person." Merrick, 246 Neb. at 661,522 N.W.2d at 406. DOTT argues that there is no duty in the present case because the risk of stroke during the rinsing procedure was unforeseeable. "[F]oreseeability, in the duty context, is a legal question for the court." Knoll v. Board of Regents, 258 Neb. 1, 8, 601 N.W.2d 757, 763 (1999). DOTT argues that the relatively new phenomenon referred to as "beauty parlor stroke syndrome" could not have been foreseen by DOTT in 1995 when Bates was allegedly injured. However, the record shows that Michele Hovorka, the owner of DOTT, was actually aware of beauty parlor stroke syndrome before March 1995. Hovorka stated that a client had brought her an article from a medical journal discussing the risk of strokes associated with beauty parlor rinsing procedures. She also stated that she felt the article was something that she needed to bring to the attention of her employees, so she held a meeting where the issue was discussed. Furthermore, she informed her employees that if a client "complained about it, they were to be rinsed forward." While Golden stated...