Carlson v. Okerstrom

• Decision Date: 13 February 2004
• Docket Number: No. S-02-1076.,S-02-1076.
• Citation: Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (Neb. 2004)
• Court: Nebraska Supreme Court
• Parties: Karen CARLSON and C. Dean Carlson, appellees, v. Leslie A. OKERSTROM and K & B Transportation, Inc., a Nebraska corporation, appellants.

675 N.W.2d 89

267 Neb. 397

Karen CARLSON and C. Dean Carlson, appellees, v. Leslie A. OKERSTROM and K & B Transportation, Inc., a Nebraska corporation, appellants.

No. S-02-1076.

Supreme Court of Nebraska.

February 13, 2004.

Gerald L. Friedrichsen, Omaha, and Susan E. Hager, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for appellants.

Bernard J. Glaser, Jr., Lincoln, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

A jury awarded C. Dean Carlson (Dean) $894,901 and his wife, Karen Carlson, $259,578 for injuries they suffered because of an automobile collision caused by the negligence of Leslie A. Okerstrom.

On appeal, Okerstrom and his employer, K & B Transportation, Inc. (collectively the appellants), claim that the court erred in allowing the Carlsons' expert, Daniel B. Einspahr, M.D., to testify that Dean developed a dysfunctional bladder because of injuries he suffered in the collision. Specifically, the appellants argue that (1) because Einspahr was an internist and not a urologist or neurologist, he was not qualified to testify as an expert on Dean's bladder condition, and (2) the basis for his opinion was unreliable. The appellants also contend that they were entitled to a partial directed verdict and that the jury verdicts were excessive.

We determine that the trial court did not err in finding that Einspahr was qualified to testify and that Einspahr's opinion had a reliable basis. In addition, we reject the appellants' claims that they were entitled to a partial directed verdict and that the verdicts were excessive. Affirmed.

I. BACKGROUND

The collision occurred in Fillmore County, Nebraska, on March 24, 1996. The Carlsons were in their van northbound on U.S. Highway 81; Dean was driving, and Karen was in the passenger seat. A Nebraska Department of Roads' gravel truck was stopped in the southbound lane, waiting to turn left into a facility operated by the Department of Roads. Okerstrom, who was driving a semitruck trailer for K & B Transportation (hereinafter K & B), collided with the back of the gravel truck. The collision propelled the gravel truck into the northbound lane where it collided with the Carlsons' van.

The Carlsons alleged that Okerstrom's negligence caused the collision and that K & B was vicariously liable for Okerstrom's negligence. Dean alleged that because of the collision, he had suffered loss of peripheral vision in his right eye, loss of bladder control, impotency, headaches, chronic pain, psychological trauma, and physiological contusions and trauma. Karen alleged that because of the collision, she had suffered an acute cervical strain, headaches, psychological trauma, and physiological contusions and trauma. Both Dean and Karen also made loss of consortium claims. At the time of the collision, Dean was 55 and Karen was 53. The details of the injuries that the Carlsons allege they suffered are discussed at length in the analysis portion of our opinion.

Before trial, K & B admitted that Okerstrom was its agent and both Okerstrom and K & B admitted that Okerstrom's negligence had caused the collision. Thus, the issues at trial were (1) whether the collision had caused the injuries alleged by Karen and Dean and (2) the extent of those injuries.

One of the main disputes between the parties was whether trauma suffered in the collision caused Dean to lose the ability to void his bladder. To prove the causal connection of his bladder condition to the collision, Dean relied on the expert testimony of Einspahr. Before trial, the appellants filed a motion in limine to prevent Einspahr from testifying that the collision had caused Dean's bladder injury. Relying on Neb. Evid. R. 702, Neb.Rev.Stat. § 27-702 (Reissue 1995), they argued that (1) Einspahr was not qualified to testify on the causation issue because he was not a specialist in urology and (2) the methodology Einspahr had employed in reaching his opinion was not reliable under the standards we adopted in Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) (adopting standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny).

After conducting a Daubert hearing, the court overruled the motion. The appellants renewed their objection at trial, during Einspahr's testimony. The court also overruled the renewed objection. The appellants did not present any evidence during the trial. When the Carlsons rested, the appellants moved for a directed verdict. To support the motion, the appellants noted that in addition to Einspahr's testimony, the Carlsons had also presented the deposition testimony of Ajay K. Singla, M.D., who testified that the cause of Dean's bladder condition was unclear. The appellants argued that because the Carlsons had offered conflicting opinions on whether the collision was the cause of Dean's bladder condition, the appellants were entitled to a directed verdict on that issue. The court denied the motion and allowed the case to proceed to the jury.

The jury returned general verdicts for Dean and Karen. It awarded Dean $894,901 for his damages and Karen $259,578 for her damages. The appellants moved for judgment notwithstanding the verdicts or in the alternative for a new trial. The motion was based on several grounds, including the failure to exclude Einspahr's testimony, the court's decision overruling the motion for a partial directed verdict, and the excessiveness of the verdicts. The court denied the motion. We granted the appellants' petition to bypass.

II. ASSIGNMENTS OF ERROR

The appellants assign that the district court erred in (1) admitting into evidence Einspahr's testimony that the collision caused Dean's bladder condition, because the testimony failed to meet the standards announced in Schafersman v. Agland Coop, supra; (2) overruling their motions for partial directed verdict and for judgment notwithstanding the verdict; and (3) concluding that the jury verdicts were not excessive.

III. STANDARD OF REVIEW

A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. Perry Lumber Co. v. Durable Servs., 266 Neb. 517, 667 N.W.2d 194 (2003); State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).

A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Perry Lumber Co. v. Durable Servs., supra.

When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law. McClure v. Forsman, 266 Neb. 90, 662 N.W.2d 566 (2003).

To sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion. Moyer v. Nebraska City Airport Auth., 265 Neb. 201, 655 N.W.2d 855 (2003).

The amount of damages to be awarded is a determination solely for the fact finder, and the fact finder's decision will not be disturbed on appeal if it is supported by the evidence and bears a reasonable relationship to the elements of the damages proved. Bradley T. & Donna T. v. Central Catholic High Sch., 264 Neb. 951, 653 N.W.2d 813 (2002). A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Perry Lumber Co. v. Durable Servs., supra.

IV. ANALYSIS

1. ADMISSIBILITY OF EINSPAHR'S CAUSATION OPINION

Since the collision, Dean's bladder has become dysfunctional; he can no longer void it without the assistance of a catheter. Dean alleges that injuries he sustained in the collision led to his bladder condition. To establish this causal connection at trial, he relied on the expert testimony of Einspahr. In their first assignment of error, the appellants assert that the trial court erred in allowing Einspahr to testify.

Rule 702 governs the admissibility of expert testimony. It provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Here, the appellants essentially make three arguments: the court (1) committed clear error in determining that Einspahr was qualified to testify as an expert on whether the collision had caused Dean's bladder condition; (2) abused its discretion in concluding that the differential diagnosis conducted by Einspahr was reliable under the standards we set out in Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) (adopting standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny); and (3) abused its discretion in allowing Einspahr to testify because on cross-examination, he conceded that his opinion was based on speculation.

We begin our analysis by describing Dean's bladder condition and how Einspahr reached his opinion. We then turn to the arguments made by the appellants.

(a) Dean's Bladder Condition and Einspahr's Analysis

(i) Basic Operation of Bladder

The bladder is part of the urinary system; its purpose is to store urine until it is voided from the body. In a functional urinary system, the distal...