Braley v. Pangburn, s. 17580
| Decision Date | 06 September 1990 |
| Docket Number | 17663,Nos. 17580,s. 17580 |
| Citation | 798 P.2d 34,118 Idaho 575 |
| Parties | Rena Dailene BRALEY, Plaintiff-Respondent, v. Daniel E. PANGBURN, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Benoit, Alexander, Sinclair, Doerr, Harwood & High, Twin Falls, for defendant-appellant. John A. Doerr argued.
Hepworth, Nungester & Lezamiz, Twin Falls, for plaintiff-respondent. John Hepworth and J. Charles Hepworth argued.
This action was brought by Rena Dailene Braley (plaintiff) to recover damages from Daniel Pangburn (defendant) as a result of injuries suffered by Braley which were proximately caused by Pangburn's negligent operation of a motor vehicle in which Braley was riding as a passenger. The vehicle left the road at a high rate of speed and rolled over two or three times. Initially Pangburn denied liability.
After the case was at issue, and after extensive discovery, the court set a date for the jury trial which had been demanded by the plaintiff. Apparently, after some discussion between involved counsel, an understanding was reached that the defendant would concede sole responsibility and liability for the plaintiff's injuries. On the date of trial a formal stipulation so stating was entered on the record. At the same time the court stated for the record that the parties having stipulated to waive the jury, the issue of damages would be tried to the court. The parties also requested that the court read the depositions of Dr. Burton, Dr. Phillips, and Dr. Retmier.
The testimony of the lay witnesses was taken at trial, after which the court prepared and issued its written decision which constituted the findings of fact and conclusions of law. Detailed statements of the plaintiff's multiple injuries were set out, the more serious of which were five broken ribs, some with displacement, and compression fractures of several thoracic vertebrate. The court noted its finding that, "[u]nquestionably the plaintiff suffers compression fractures at five levels in her thoracic spine ... representing permanent injuries to the spine which cannot improve but may become worse as the plaintiff ages." Other findings included "common degenerative changes which may result from compression fractures ... disc space narrowing at levels T-8 and T-9 ... presence of osteophytes or spurring ... permanent conditions ... and in fact will remain the same or worsen." The court made findings as to the extent of Braley's resultant disablement: A seven day hospital stay, being virtually bed-ridden at home for the ensuing month, wearing a Jewett brace for three months, and being unable to return to her employment or do her housework until seven months after the injuries were suffered. Damages were set by the court on an itemized basis, both past and prospective, for medical expenses, loss of income, loss of household services, pain and suffering, and loss of the enjoyment of life, totaling $165,228.84.
The defendant timely moved for a new trial. No challenge was made to the court's assessment of damages or to the sufficiency of the evidence to substantiate those damages. Instead the motion was predicated on alleged irregularities, including accident or surprise and error-in-law. I.R.C.P. 59(a)(1), (a)(3), and (a)(7). The supporting affidavit of defense counsel narrates his involvement in the case and the circumstances which are relied upon to substantiate the alleged grounds for a new trial:
At the time I received the file to defend the action, I received ... records showing that plaintiff had been seen by [Dr.] Pressman at the emergency room of Magic Valley Regional Medical Center, by [Dr.] Phillips in consultation and treatment and by physician neurologist Schaffert in consultation.
The records of the emergency room of February 21, 1986, disclosed a 'possible compression fracture of T-7, left posterior rib fractures, contusions abrasions, left forearm laceration.'
Dr. Phillips saw plaintiff at the hospital on February 21, 1986, and reported impressions of '(1) multiple abrasions and contusions of the head, chest, extremities; (2) multiple rib fractures; (3) rule out dorsal spine compression fracture.'
X-rays and Tomograms taken at the Magic Valley Medical Center on February 24, 1986 showed compression fractures of T-7, T-9, T-10, T-11 and T-12, with fractures of ribs 5th through 9th on the left. The Tomograms showed a loss of the anterior height of T-9 of approximately 5 mm with no loss of height of the posterior portion, loss of anterior height of T-9 of approximately 3 mm, and minimal anterior superior compression of T-10, T-11 and T-12 with minimal loss of vertebral height.
No other problems were diagnosed by Dr. Phillips or revealed by x-ray or Tomogram.
Dr. Phillips's records showed that he saw her five times from March 5, 1986, two weeks after the accident, until September 2, 1986, at which time he referred her to Dr. Schaffert.
Dr. Schaffert saw her on September 9, 1986, September 24, 1986, and October 20, 1986, and concluded his report of October 20, 1986 with With impression of '1) continued complaints of left shoulder girdle strain; 2) continued complaints of low back pain.' In his report of September 9, 1986, Dr. Schaffert reported under impressions, 'History of thoracic vertebral fractures which should have been healed by this time or should be very nearly healed by this time.'
Dr. Schaffert diagnosed no other problems.
....
In September, 1987 [defense counsel] ... [had] the plaintiff examined by [Dr.] Robert Burton ... on November 11, 1987.
Dr. Burton received all the records previously noted, including all of the reports of x-rays which had been taken to that date, and the actual x-rays.
....
With the records of ... Pressman, Phillips, Schaffert and Burton in hand, on March 7, 1988, interrogatories and request for production of documents were served on plaintiff's attorneys.
Among the interrogatories was one (No. 3) asking the plaintiff to describe in detail all injuries received as a result of the accident.
The interrogatories were answered on April 7, 1988.
The answer to No. 3 was a copy of 'all medical records accumulated since the accident of February 20, 1987.'
Those records included the records of Dr. Pressman, Dr. Phillips, and Dr. Schaffert, which were the same records previously received....
[I]n addition, records of Dr. James Retmier, an orthopedist, were attached. They include records of two visits; one on September 28, 1987, and the other on October 30, 1987. In his report of September 28, 1987 ... Dr. Retmier's impressions were
These answers to interrogatories and responses to request for production of documents did not include any medical evidence that had not been previously seen or reviewed except for the records of Dr. Retmier which confirmed that reported by Drs. Phillips, Schaffert and Burton.
Dr. Burton became unavailable for trial and arrangements were made to perpetuate his testimony and his deposition was taken on May 17, 1988.
I was advised that Drs. Phillips and Retmier would be unavailable and that their depositions would be taken. Later I was told that Dr. Phillips would not be called as a witness, and I elected to call him to perpetuate the treatment of which I was then aware. His deposition was scheduled for May 18, 1988, six days prior to trial. Dr. Retmier's deposition was scheduled for May 19, 1988, five days prior to trial.
In the course of taking the deposition of Dr. Phillips, it was determined that he had just prior to the deposition examined and re-x-rayed plaintiff. He testified that he made new findings; namely, disc space narrowing and the presence of osteoplytes at the level of the compressed T-9 and T-7.
Neither Mr. John Hepworth nor his son J. Charles Hepworth nor John Lezamiz, counsel for plaintiff, all of whom were present at the time of the deposition, told me at any time prior to the deposition, that Dr. Phillips was planning to examine her again, or had in fact done so, or that there were any significant new findings by examination or x-rays.
Dr. Phillips went on to testify that on the basis of his recent examination and x-rays that these new findings were significant.
Dr. Retmier, on the following day, testified that he too had examined the plaintiff on that day. Counsel for plaintiff did not advise me that they intended to have her examined or that she had in fact been examined.
Dr. Retmier testified on the basis of that examination and discussions had with her as to her future back problems and presented evidence of osteophytes and disc space narrowing and the consequence thereof, none of which had been previously reported. The doctor based his testimony on the x-rays taken on the day previous by Dr. Phillips.
Then, on the day of trial, plaintiff introduced the evidence of Dr. Hoffman, who was not listed as a witness in plaintiff's answer to interrogatories. He testified [over objection], about osteophytes and disc space narrowing on the basis of x-rays taken on May 18, 1988 by Dr. Phillips.
And then Dr. Schaffert testified, at trial, that he had examined the plaintiff on the day...
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