Fisher v. Davis

• Citation: 601 N.W.2d 54
• Decision Date: 13 October 1999
• Docket Number: No. 98-119.,98-119.
• Parties: Darcy FISHER, Appellee, v. Lisa DAVIS, Appellant.
• Court: United States State Supreme Court of Iowa

601 N.W.2d 54

Darcy FISHER, Appellee, v. Lisa DAVIS, Appellant.

No. 98-119.

Supreme Court of Iowa.

October 13, 1999.

Donald L. Carr II and Jill Mataya Corry of Sullivan & Ward, P.C., Des Moines, for appellant.

Paul W. Demro of Correll, Sheerer, Benson, Engels, Galles & Demro, P.L.C., Cedar Falls, for appellee.

Considered by CARTER, P.J., and LAVORATO, SNELL, CADY, and SCHULTZ,¹ JJ.

LAVORATO, Justice.

In this personal injury case, the district court found the jury verdict was inadequate and granted the plaintiff a new trial unless both the plaintiff and the defendant consented to an additur. The defendant appealed, contending that the district court abused its discretion in ruling that the plaintiff was entitled to a new trial. In the alternative, the defendant contends the district court erred in requiring the consent of the plaintiff to the additur. The defendant also contends that any retrial should be limited to damages relating to the injury for which the jury awarded medical expenses and should exclude other injuries the plaintiff claims she sustained.

We conclude the district court was correct in finding that the damage award was inadequate. Because the appeal reinstated the judgment, we reverse the judgment. We also conclude the district court erred in requiring the plaintiff's consent to the additur. We remand to allow the district court to decide whether to simply grant a new trial or grant a new trial on condition of an additur. If either party is dissatisfied with the additur, that party may appeal. Any retrial should be limited to damages relating to the injury for which the jury awarded medical expenses.

I. Background Facts and Proceedings.

On the afternoon of February 22, 1993, Lisa Davis was driving toward the intersection of Wagner Road and old Highway 20. The day was clear, but snow and ice had accumulated on the roads because of a snowstorm the previous night. As Davis approached the intersection, she slowed her truck in preparation for a set of bumpy railroad tracks. As she crossed the tracks, Davis began pumping her brakes to slow down but the brakes locked, causing her truck to slide down a slight hill and into the back end of a car that was stopped at the intersection. Darcy Fisher was behind the wheel of the car that Davis' truck had rear-ended.

At the time of the collision, Fisher was turned and looking at the child in the backseat because she was anticipating the collision. (Fisher was baby-sitting the child at the time.) On impact, Fisher felt pain. Although Fisher did not think she was seriously hurt, she had pain several hours later. She saw Dr. Thomas Pattee the next day because the left side of her neck and the left temple of her skull were sore. Pattee diagnosed Fisher's condition as "an injury to the cervical and thoracic area of the spine," commonly referred to as a whiplash injury. He prescribed anti-inflammatory medication, pain pills, and muscle relaxers. He also recommended a follow-up visit. Pattee saw Fisher three days later and administered osteopathic manipulative therapy. At that time Fisher was complaining of pain in her neck and had a limited range of motion in that area. On March 2, which was her third visit, Pattee noted Fisher's condition "markedly improved." Pattee treated Fisher's neck condition sporadically until July 1994.

On March 16, 1993, Fisher complained to Pattee that she was having pain in her right arm and elbow. Pattee diagnosed her condition as epicondylitis, commonly referred to as "tennis elbow." Because the condition did not respond to treatment, Pattee referred Fisher to a physical therapist for treatment. When that treatment proved unsuccessful, Pattee referred Fisher to Dr. Johnson, an orthopedic doctor. Johnson treated her with cortisone shots in the arm and pain pills. Because this treatment gave only temporary relief from her pain, Fisher saw Dr. Arnold Delbridge, another orthopedic doctor. Delbridge recommended surgery on the elbow, which he performed in February 1994. After surgery, Fisher had physical therapy on the elbow.

On March 18, 1994, Fisher for the first time complained of pain in her right shoulder. She made that complaint to the therapist who had been treating her elbow condition. On April 7 the therapist noted that Fisher's right shoulder was "clicking." After various treatments to the shoulder failed, Delbridge performed orthoscopic surgery on Fisher's shoulder in December 1995. Because the pain in Fisher's shoulder did not subside, Delbridge performed open shoulder surgery on Fisher in October 1996. Fisher had physical therapy on the shoulder after the surgery.

Fisher sued Davis in December 1994, contending the neck, elbow, and shoulder injuries resulted from the February 22, 1993 collision. The case was tried to the jury in June 1997. Fisher testified to the pain she suffered from her neck, elbow, and shoulder injuries. Pattee testified that Fisher's neck injury resulted from the collision. Delbridge likewise testified that Fisher's elbow and shoulder injuries resulted from the collision.

Several months before trial, Dr. Peter Wirtz examined Fisher at the defense's request. At the trial, the defense counsel asked Wirtz several hypothetical questions. The questions and answers follow:

Q. Doctor, I'd like for you to assume that Mrs. Fisher on or about February 22, 1993, was involved in a rear-end collision wherein her vehicle was struck going two to five miles per hour, and she was in the driver's seat of the motor vehicle. Would the soft tissue injury to her neck be consistent with that type of a collision? A. To my experience and education, an injury of that magnitude would result in a soft tissue Grade I strain.

Q. As a result of that what would you expect the course of treatment and recovery to be? A. I would expect there to be some symptoms of pain in that area for a period of time. The management would include restricted activities and medications, and over a short period of time, two to four, six weeks, it would respond.

Q. You observed neck muscular symptoms approximately four years after this collision. Would you attribute those particular symptoms to the automobile collision of February 22, 1993? A. No.

In response to several other similar hypothetical questions, Wirtz ruled out any connection between the collision and Fisher's elbow and shoulder conditions.

The defense also presented four witnesses who testified that they saw Fisher out dancing in a bar in September 1995. Each testified that they watched Fisher moving and waving her arms above her head as she danced with no apparent pain or limitations.

The district court submitted all three injuries to the jury. The jury instructions permitted the jury to allow damages for (1) past medical expenses, (2) past lost wages, (3) past pain and suffering, (4) future pain and suffering, (5) loss of future earning capacity, (6) past loss of full mind and body, and (7) future loss of full mind and body. The court submitted a special verdict form as to each of these elements of damages. The jury, however, allowed only $534.14 for past medical expenses, all of which was attributable to the neck injury.

Fisher filed a motion for new trial, alleging that "the failure of the jury to award damages for past pain and suffering and other damages consistent therewith is an impermissible inconsistency under Iowa law." Fisher further alleged that based on that inconsistency she was entitled to a new trial on all the issues. Davis resisted the motion, contending the verdict was reasonable and consistent with the evidence.

The district court found that it was inherent in the verdict that the jury had found Fisher had sustained an injury to her neck that was caused by the collision and that necessitated medical care. From this finding, the court concluded that the failure to award some damages, even a relatively small amount, for her past pain and suffering attributable to that injury was unreasonable and internally inconsistent with the jury's finding that Fisher had sustained an injury.

The district court made the following further findings:

However, because the verdict makes it clear that the jury found plaintiff was only entitled to recover the medical expenses for her neck injury, the only other damages plaintiff should have been awarded was for her pain and suffering during the three-week period following the accident. Under these circumstances, it is held that a $1000 additur would be appropriate to compensate plaintiff for her additional damages attributable to that injury alone.

The court then sustained Fisher's motion for new trial. The court ordered a new trial as to damages only unless both parties, within ten days of the ruling, accepted an additur of $1000 to the amount the jury had awarded. We find nothing in the record that either party accepted the additur. Davis appealed from the district court's ruling on Fisher's motion for new trial.

On appeal Davis contends the district court abused its discretion in granting a new trial because the verdict was supported by substantial evidence and was in accord with Iowa law. In the alternative, Davis contends that the district court erred in granting a new trial if Fisher alone refused to accept the additur. Finally, if we do affirm the grant of a new trial, Davis contends the issues should be limited to damages for Fisher's neck injuries.

II. Whether the Verdict Was Supported by Substantial Evidence and Was in Accord with Iowa Law.

The district court may grant an aggrieved party a new trial when the jury awards excessive or inadequate damages, or when the verdict is not sustained by sufficient evidence, or is contrary to law. Iowa R. Civ. P. 244(d), (f). The district court has considerable discretion in ruling upon a motion for new trial based upon the ground that the verdict was inadequate. Householder v. Town of Clayton, 221 N.W.2d 488, 493 (Iowa 1974). Whether damages are so inadequate to warrant...