Cassibry v. Schlautman, 2000-CA-01466-COA.

• Decision Date: 30 October 2001
• Docket Number: No. 2000-CA-01466-COA.,2000-CA-01466-COA.
• Citation: 816 So.2d 398
• Parties: Debra Lomax CASSIBRY, Appellant, v. Brian SCHLAUTMAN, Appellee.
• Court: Mississippi Court of Appeals

816 So.2d 398

Debra Lomax CASSIBRY, Appellant, v. Brian SCHLAUTMAN, Appellee.

No. 2000-CA-01466-COA.

Court of Appeals of Mississippi.

October 30, 2001.

Rehearing Denied February 5, 2002.

Certiorari Denied May 16, 2002.

Joseph E. Roberts, Jr., Jackson, Attorney for Appellant.

Vick K. Smith, Attorney for Appellee.

Before McMILLIN, C.J., BRIDGES, and CHANDLER, JJ.

CHANDLER, J., for the Court:

¶ 1. Debra Cassibry appeals from the jury verdict and resulting judgment awarding her $500 for damages sustained in an automobile accident involving herself and the appellee, Brian Schlautman. Cassibry moved the circuit court for additur or alternatively a new trial, arguing that the judgment failed to compensate her for her medical expenses. Aggrieved by the circuit court's refusal to grant an additur or new trial, Cassibry cites the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED BY REFUSING TO GRANT AN ADDITUR WHEN THE JURY VERDICT FAILED TO COMPENSATE FOR MEDICAL EXPENSES; AND

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING CERTAIN HEARSAY MEDICAL RECORDS INTO EVIDENCE.

STATEMENT OF THE FACTS

¶ 2. On April 2, 1996, Debra Cassibry and Brian Schlautman were involved in an automobile accident wherein Schlautman negligently struck Cassibry's vehicle from behind. Schlautman conceded the issue of negligence, and the case proceeded to trial on the issue of damages. Schlautman testified that the collision had been insubstantial, causing very little visible damage to either vehicle. Furthermore, Schlautman stated that he spoke with Cassibry immediately after the accident, asking her if she was injured; Cassibry acknowledged that she was fine.

¶ 3. Cassibry testified that the impact of the two cars caused "a big jolt," resulting in immediate neck pain. She stated that the pain would not go away and eventually became so unbearable that by April 9, 1996, one week after the initial accident, she went to see a doctor. Cassibry's medical records show that she visited the family doctor on four different occasions between April and August 1998. Each time the doctors prescribed her pain medication. Cassibry acknowledged that x-rays taken at that time failed to reveal any signs of physical damage to either her neck or back.

¶ 4. On August 18, 1996, Cassibry was injured in another automobile accident. For the second time in two and one-half months, the negligence of another driver resulted in Cassibry's vehicle being struck from behind. However, this time the negligent vehicle was proceeding approximately fifty miles per hour when the collision occurred. The mere impact of the two vehicles tossed Cassibry into the dashboard, causing, among other things, a smashed knee and a broken thumb. Despite the severity of this accident, Cassibry insisted that the accident did not cause or aggravate any injuries to her neck or back.

¶ 5. Following the second accident Cassibry visited Dr. Harless, her family physician, who in turn referred her to Dr. Parks, an orthopaedic surgeon. For reasons which are unclear, Cassibry did not see Dr. Parks until March 27, 1997, approximately seven months after the second accident. During this time Cassibry worked as a notary in New Orleans. She testified that the pain in her neck became increasingly more intense.

¶ 6. After listening to Cassibry, Dr. Parks came to the conclusion that Cassibry's neck and back injuries had been caused by the second accident. However, Cassibry requested that Dr. Parks change the medical records on May 19, 1998, to state that the injuries were caused by the first accident. Dr. Parks complied with Cassibry's request but, contrary to her wishes, noted that if the second accident had not caused the neck and back injuries, it certainly played a role in aggravating them.

¶ 7. Dr. Parks concluded that Cassibry had a pinched nerve in her back and suggested surgery. Cassibry, increasingly apprehensive at the thought of surgery, sought the solace of a chiropractor instead. Dr. Beatty, the chiropractor, determined that the curve in Cassibry's neck had reversed and performed a procedure to straighten it out. Cassibry testified that while this procedure helped her neck, the pain in her back increased.

¶ 8. After numerous visits to various doctors, Cassibry was referred to Dr. Voorhies, a neurosurgeon. Dr. Voorhies, like Dr. Parks, suggested surgery but Cassibry refused. Finally, in December 1999, over three and one-half years after the first accident, Cassibry underwent surgery for the injuries to her back. However, by that time Cassibry had been in a third automobile accident where, just like the previous two, a second vehicle rear-ended her vehicle. Cassibry admitted that the third accident caused significant injury to her lower back.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR BY REFUSING TO GRANT AN ADDITUR WHEN THE JURY VERDICT FAILED TO COMPENSATE FOR MEDICAL EXPENSES?

¶ 9. Cassibry argues that she is entitled to an additur, contending that the jury verdict must have been the result of bias, passion, and prejudice inasmuch as it did not compensate her for the medical bills incurred as a result of Schlautman's negligence. In determining whether Cassibry should be awarded an additur, this Court must first look to Miss.Code Ann. § 11-1-55 (Rev.1991), which provides:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for a new trial or affirm on direct or cross appeal, upon the condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence.

¶ 10. This Court will not reverse a trial court's denial of a motion for additur unless it is clear that the trial court abused its discretion. Boggs v. Hawks, 772 So.2d 1082, 1084(¶ 5) (Miss.Ct.App. 2000). The burden of proving injuries and other damages is on the party requesting the additur. Maddox v. Muirhead, 738 So.2d 742, 743 (¶ 5) (Miss.1999). Moreover, evidence will be viewed in a light most favorable to the nonmoving party, including any favorable inference that may be reasonably drawn from such evidence. Id. The Mississippi Supreme Court has always been reluctant to set aside jury verdicts, noting that a verdict should not be adjusted "unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous." Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss.1992). See also Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988)

(noting that additur should not be employed indiscriminately as it is a judicial intrusion into functions traditionally relegated to the jury). Finally, there are no fixed standards for judging which cases are entitled to an additur; therefore, each case must be decided in the context of its own facts. Leach v. Leach, 597 So.2d 1295, 1297 (Miss.1992).

¶ 11. Under Miss.Code Ann. § 41-9-119 (Rev.1993), "[p]roof that medical, hospital, and other doctors bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable." See Boggs, 772 So.2d at 1085

(¶ 9); Hubbard v. Canterbury, 805 So.2d 545 (¶ 10)(Miss.Ct.App.2000). However, the defendant can rebut such damages by putting forward proper evidence tending to negate the necessity and reasonableness of the expenses. Jackson v. Brumfield, 458 So.2d 736, 737 (Miss.1984). See also Moody v. RPM Pizza, Inc., 659 So.2d 877, 886 (Miss.1995).

¶ 12. Cassibry contends that Schlautman failed to rebut the necessity and reasonableness of the medical bills she entered into evidence and, therefore, the jury should have compensated her for the full amount of the expenses. However, the main issue in this case does not pertain to the necessity and reasonableness of Cassibry's medical expenses; rather, it revolves around whether her injuries and resulting medical expenses were caused by Schlautman's negligence. As the Mississippi Supreme Court has noted, "recoverable damages must be reasonably certain in respect to the efficient cause from which they proceed, and that the burden is on the claimant to show by a preponderance of the evidence that the person charged was the wrongful author of that cause." Blizzard v. Fitzsimmons, 193 Miss. 484, 10 So.2d 343, 345 (1942). See also Brake v. Speed, 605 So.2d 28, 32 (Miss.1992)

; Jackson v. Swinney, 244 Miss. 117, 124, 140 So.2d

555, 557(1962)(rejecting conjecture as a basis for liability).

¶ 13. In Brake, the plaintiff was involved in two separate automobile accidents during a six-month period. Brake, 605 So.2d at 29. The plaintiff sued the individual who caused the first accident and the jury awarded her less than half of her total medical expenses; the trial court then rejected her request for an additur. Id. at 29-30. The Mississippi Supreme Court affirmed, holding that the verdict "was not so shocking or unsupportable in evidence to lead one to think that the verdict was a result of prejudice ... it was incumbent upon [the plaintiff] to prove by a preponderance of the evidence that her injuries were attributable to the accident with [the defendant]." Id. at 34. In reaching its decision, the court emphasized the differences in the two accidents, noting that the plaintiff drove away after the first accident but was taken to the hospital by an ambulance following the second accident. Id. at 35. Likewise, the court noted that the medical treatment increased after the second accident as the plaintiff required diagnostic tests, chiropractic treatment, and numerous doctor visits. Id.

¶ 14. Turning to the case at bar, we find that the jury's verdict is not without support. First, the accident occurred at a low rate of speed and the damage to each vehicle was visibly...