Downing v. Shoreside Petroleum, Inc.
| Docket Number | Supreme Court No. S-18100 |
| Decision Date | 05 May 2023 |
| Citation | 528 P.3d 874 |
| Parties | Peggy DOWNING, Appellant, v. SHORESIDE PETROLEUM, INC. and Russell Mills, Appellees. |
| Court | Alaska Supreme Court |
William D. Cook, Law Offices of William Dennie Cook, Eagle River, and Griffith J. Winthrop, III, Orlando, Florida, for Appellant.
Matthew T. Findley and Benjamin J. Farkash, Ashburn & Mason, P.C., Anchorage, for Appellees.
Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.
A tractor-trailer truck rear-ended a stopped car at a construction site, injuring the driver of the car. The injured driver was a successful surgeon, who suffered permanent injuries that limited her ability to practice medicine. She sued the truck driver and his employer for damages, including medical expenses, pain and suffering, lost earnings, and lost future earning capacity. After a bench trial, the superior court awarded damages for all categories except lost future earning capacity. Even though the court found that the surgeon had proven her injuries permanently impaired her future earning capacity, the court concluded that the surgeon had failed to prove the amount of her future lost earning capacity with reasonable certainty. The court reconsidered the defendants’ motion to dismiss several categories of damages, which it had previously denied, and dismissed the claim for lost future earning capacity. The court then found neither party was a prevailing party and ordered each side to be responsible for its own fees and costs.
The surgeon appeals. She argues that the superior court erred by requiring her to prove the amount of her future lost earnings to a "reasonable certainty." She also argues that the court erred by not finding she was the prevailing party for purposes of attorney's fees. We conclude it was legal error to require proof of the amount of lost future earnings to a reasonable certainty and not to award at least nominal damages to the surgeon for the proven harm to her future earning capacity from her injuries. We therefore reverse the dismissal of the lost earning capacity claim and remand for calculation of damages based on the appropriate standard of proof. As a result, we vacate the award of attorney's fees pending the court's determination on remand.
In June 2017, 60-year-old Peggy Downing stopped her car at a construction site and was rear-ended by a tractor-trailer driven by an employee of Shoreside Petroleum, Inc. The impact crushed the back of the car, pushed it into the vehicle in front of it, and left Downing unconscious for some time. Downing's injuries included "a laceration on her head, severe bruising throughout her body, and five broken ribs." Downing also suffered dizziness, headaches, pain, memory loss, and sensory disturbances that continued after the crash. Some of her symptoms persisted through the time of trial three and a half years later.
Downing is an obstetrician-gynecologist (OB/GYN) and the sole proprietor of Generations Medical Center. The medical center provides primary and specialized care and employs several physicians and assistants. Until late 2019 Downing had admission and surgical privileges at four hospitals and medical centers, including Mat-Su Regional Medical Center, where she delivered babies, including complex deliveries, and performed robotic surgeries. These hospital-based procedures were a significant source of Generations’ revenue.
Soon after the accident Downing saw a neurologist, Dr. Scot Hines, because of her ongoing symptoms. Dr. Hines advised her to limit herself to "light duty" and routine surgery when she returned to work in late June. In November, without examining Downing again, Dr. Hines released her to work "without restrictions." Downing began gradually increasing her hours in September, but because her symptoms continued she was unable to resume her full schedule.
After a second neurologist expressed concern about her ability to resume full-time duties, Downing informed Mat-Su Regional about her continuing impairment in August 2019. Because Mat-Su Regional advised her that it intended to begin a formal investigation into her competence, which could lead to an entry on the National Practitioner Data Bank,1 Downing chose to relinquish her surgical and admission privileges there. Downing also stopped performing on-call duties.
In July 2018 Downing sued Shoreside and its employee (collectively "Shoreside"). Shoreside admitted liability for the accident, but contested the cause, severity, and amount of Downing's claimed damages.
The superior court held a ten-day bench trial in January 2021. Downing presented nine expert witnesses about various aspects of her injuries, symptoms, and care. Downing also called her daughter, who worked at Generations, Generations’ tax preparer, and a vocational expert who testified about the economic impact of Downing's injuries on her practice. Finally Downing testified herself. Depositions were admitted in evidence from some of the same experts, a witness to the accident, and three other Generations employees. We summarize only the testimony relevant to Downing's entitlement to damages for lost future earning capacity.
Downing presented nine expert witnesses about the accident's effects on her. Three medical specialists — a neuropsychologist, a neuroradiologist, and a neuroscientist — testified that Downing had suffered a traumatic brain injury (TBI) due to the accident and that her resulting impairments were likely permanent. Six of Downing's experts testified about the TBI's effects on her verbal expression, memory, spelling, reading and auditory comprehension, and fatigue.
The neuropsychologist expressed concern about the TBI's impact on Downing's ability to perform complex surgeries. A speech language pathologist and an audiologist (who was also a speech language pathologist) both stated that sensory processing issues from the TBI impaired her ability to work. The audiologist testified that because of her auditory comprehension difficulties, "chaotic and noisy" delivery rooms would require Downing to "work harder to hear what is said to her" and cause her to tire quickly. A neuro-optometrist noted that visual impairments could affect her surgical abilities. The neuroscientist concluded that Downing's injuries from the accident had caused "a constellation of problems ... that limit her work ability." He concluded that Downing was significantly impaired as a result of the TBI she suffered and would likely experience more rapid cognitive decline as she aged compared to someone without a TBI. The neuroscientist testified that Downing should not be performing surgeries or taking on-call duties and that he had encouraged Downing to inform the hospital and her medical malpractice insurance carrier about her symptoms for safety reasons.
A neurosurgeon testified that the accident aggravated preexisting problems in Downing's neck and spinal cord, causing pain, tingling, and numbness in her upper body that improved only with rest and would eventually require surgery. He testified that her injuries "substantially and permanently limit[ed]" Downing's ability to "perform[ ] manual tasks, walk[ ], and work[ ]."
Downing relied on Generations staff to establish the change in her work habits before and after the accident. Her daughter and the Generations office manager both described Downing as working grueling hours before the accident, both in her medical practice, which included nighttime and on call duties, and running the clinic's business. Downing's daughter testified that before the accident her mother planned to work for at least 10 more years.
Downing's daughter and the office manager also described the changes they had observed since the accident. Each of them recounted Downing's difficulty concentrating or staying organized and noted that as a result, Downing was easily frustrated and often irritable. Her daughter and the accountant stated that Downing's ongoing pain and other symptoms prevented her from resuming her previous busy schedule. Downing's daughter testified that her mother was unsure how much longer she could continue to work. The office manager explained that Downing's reduced capacity had resulted in decreased revenue for Generations and led the clinic to make cuts, including not replacing staff.
Dr. Donna Chester, who had been hired to fill the gap in services created by Downing's impairments, stated she was hired in June 2020 and became Generations’ sole robotic surgeon. Dr. Chester explained the impact of performing surgeries on the clinic's revenue, comparing a "plain GYN with no procedures" who would earn about $150,000 to $200,000 per year with her own income. Because she could perform deliveries and surgeries, Generations paid her $300,000 for nine months of work, plus about $20,000 to $50,000 in bonuses and benefits. Dr. Chester also observed that an OB/GYN could earn even more through networking and referrals.
Downing testified that before the accident she had a "near photographic memory," excelled in school, scored in the 96th percentile on a national medical school admission test without taking a practice course, and graduated fourth in her medical school class. She testified that before the accident she was also responsible for business planning, generating new clientele, and overseeing employees. She testified that after the accident other employees had to take over some of those duties, the clinic had to hire an additional person, and she was not able to be as involved in business decision-making. And she testified that Generations had to change its previous plans to hire younger doctors to take over the clinic after she retired, because she could not provide them the expected training and information about the clinic's business and patients.
Downing also...
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