Graftenreed v. Seabaugh

• Court: Arkansas Court of Appeals
• Writing for the Court: Larry D. Vaught
• Citation: Graftenreed v. Seabaugh, 100 Ark. App. 364, 268 S.W.3d 905 (Ark. App. 2007)
• Decision Date: 28 November 2007
• Docket Number: No. CA 06-1289.,CA 06-1289.
• Parties: Laura GRAFTENREED, Appellant, v. Karen Wood SEABAUGH and Kaity Wood, Appellees.

268 S.W.3d 905

100 Ark. App. 364

Laura GRAFTENREED, Appellant, v. Karen Wood SEABAUGH and Kaity Wood, Appellees.

No. CA 06-1289.

Court of Appeals of Arkansas.

November 28, 2007.

Rehearing Denied January 9, 2008.

David A. Hodges, Little Rock, AR, for appellant.

Chaney Law Firm, P.A., by Don P. Chaney, Arkadelphia, AR, for appellees.

LARRY D. VAUGHT, Judge.

This is a personal-injury case. When she was fifteen years old, appellee Kaity Wood was injured in a vehicle accident caused by appellant Laura Graftenreed. Ms. Graftenreed appeals from a judgment entered on a jury verdict for Ms. Wood and her mother, appellee Karen Wood Seabaugh. On appeal, Ms. Graftenreed challenges some of the jury instructions, the introduction of certain medical evidence, and the sufficiency of the evidence. We affirm on all points.

The accident occurred in January 2001. Appellant's vehicle struck the vehicle in which Ms. Wood was a passenger from behind, causing it to hit the vehicle in front of it. Four days later, Ms. Wood saw her family doctor for shoulder and neck pain. The x-rays he took were normal, and he prescribed anti-inflammatories and muscle relaxers. A week later, he saw no reason to prescribe further treatment. Her symptoms, however, returned and worsened. Ten months later, Ms. Wood saw Dr. Kenneth George, a chiropractor, for neck and back pain. He saw Ms. Wood on nine occasions between November 2001 and January 2002. Mrs. Seabaugh filed this negligence lawsuit against appellant on Ms. Wood's behalf in March 2002. Ms. Wood joined the lawsuit when she reached the age of majority. In February 2003, Ms. Wood saw Dr. George again for the same symptoms.

Ms. Wood was involved in another accident in October 2003. She was examined in the emergency room, complaining of pain in her knee, elbow, neck, and chin and was diagnosed with "ligamentous strain, right knee." A neck x-ray taken at that time showed straightening of her cervical spine. Ms. Wood did not tell Dr. George about the second accident when she saw him for subsequent treatments. Appellees have consistently maintained that her primary complaint from the second accident was a knee injury and that her neck and back problems resulted from the accident caused by appellant.

Dr. George referred Ms. Wood for digital motion x-rays (DMXs). DMXs, which are a type of video fluoroscopy, are a relatively new use of an old technology (x-rays) and are used by some physicians and chiropractors to diagnose a ligamentous injury. A DMX machine uses a video camera to take thirty x-ray frames per second, for ninety seconds, as the patient moves. These images are viewed on a computer. Dr. David Harshfield and Dr. Kenneth Ratajczak, radiologists, reviewed Ms. Wood's DMXs. Using their reports, Dr. George was prepared to testify at trial that Ms. Wood had suffered permanent neck and low-back injuries caused by the collision with appellant that would limit her activities and require future medical treatment.

Appellant objected to the introduction of the DMX evidence by filing motions in limine before trial. She asked the trial court to prohibit any testimony from Dr. George that was not timely disclosed. She also argued that there was no basis for Dr. George to testify about the radiology reports; that the second accident was an intervening cause of her injuries; that DMX technology was not scientifically reliable; and that Dr. George was not qualified to testify about radiology results reported by a medical doctor. The trial court denied these motions and held that, assuming that the DMX evidence was subject to a reliability challenge, Ms. Wood had sufficiently shown that it is reliable and accepted by the chiropractic and medical communities. The court also held that the value of the DMX evidence was not outweighed by the danger of unfair prejudice.

At trial, the circuit court denied appellant's motions for directed verdict on the issues of negligence, liability, and damages. The case was submitted to the jury over appellant's objections to a damages instruction that included transportation costs related to medical care and Ms. Wood's loss of ability to earn in the future. On a general verdict, the jury awarded Mrs. Seabaugh $1,485 (her requested out-of-pocket medical expenses) and $57,000 to Ms. Wood.

I. The jury instructions

Appellant first argues that the trial court erred in instructing the jury on Ms. Wood's transportation costs in seeking medical care and her loss of future earning ability.

A. Transportation costs

Appellant argues that there was no evidence to support the instruction on transportation costs as damages. Paragraph two of the damages instruction stated that, if the jury found in favor of Ms. Wood on liability, it must fix the amount of money to reasonably and fairly compensate her for "[t]he reasonable expenses of any necessary medical care, treatment, and services received after Kaity Wood turned eighteen years of age, including transportation necessarily incurred in securing such care, treatment or services, and the present value of such expenses reasonably certain to be required in the future." Appellant asked that the same instruction be given without the clause involving transportation costs because there was no evidence of past expenses or of the present value of such expenses reasonably certain to be required in the future. Appellees argued that their evidence that Ms. Wood went to Little Rock for the DMXs and to Jonesboro for an MRI was sufficient to submit this instruction. Ms. Wood testified about her out-of-town trips for these medical tests but did not present any evidence of their monetary value. She testified that she now works in Jonesboro and plans to seek future medical care there.

Appellant also argues that there is no way to tell how much of the verdict was intended as damages for past and future transportation costs. The supreme court has held that, when an erroneous instruction has been given and a jury has rendered a general verdict from which prejudice due to the error cannot be ascertained, it will reverse. England v. Costa, 364 Ark. 116, 216 S.W.3d 585 (2005).

A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). We will not reverse a trial court's decision to give an instruction unless the court abused its discretion. See Marx v. Huron Little Rock, 88 Ark.App. 284, 198 S.W.3d 127 (2004).

The trial court did not err in giving this instruction. It has long been held that judicial notice may be taken of the locations and distances between towns. St. Louis S.W. Ry. v. Taylor, 258 Ark. 417, 525 S.W.2d 450 (1975). Additionally, jurors are entitled to take into the jury box their common sense and experience in the ordinary affairs of life. Fayetteville Diagnostic Clinic, Ltd. v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001); Palmer v. Myklebust, 244 Ark. 5, 424 S.W.2d 169 (1968). The jurors were competent to determine the cost of such transportation from their common knowledge and experience. See St. Louis, I.M. & S. Ry. Co. v. Stell, 87 Ark. 308, 112 S.W. 876 (1908).

B. Ms. Wood's future earning ability

Appellant next argues that the jury should not have been instructed to consider Ms. Wood's loss of future earning ability because Ms. Wood testified that she had never missed any work because of her injuries. At trial, Ms. Wood testified that she worked about two to three days a week for IGA at the time of the accident and that, afterward, she continued to work the same amount of time. She also testified that she never missed any work at her subsequent jobs.

Damage resulting from loss of earning capacity is the loss of the ability to earn in the future. Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983). The impairment of the capacity to earn is sometimes confused with permanency of the injury, but it is a separate element. Id. A permanent injury is one that deprives the plaintiff of her right to live her life in comfort and ease without added inconvenience or diminution of physical vigor. Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993). It is well recognized that impairment of earning capacity is recoverable only upon proof that an injury is permanent. Id. Although whether a permanent injury exists is not to be left up to speculation and conjecture on the part of the jury, proof of this element does not require the same specificity or detail as does proof of loss of future wages. Cates v. Brown, 278 Ark. at 245, 645 S.W.2d 658. This is because a jury can observe the appearance of the plaintiff, her age, and the nature of the injuries that will impair her capacity to earn. Id. Proof of specific pecuniary loss is not indispensable to recovery for this element. Id. It is to be determined by the application of the common knowledge and experience of the jurors to the facts and circumstances of the case. Coleman v. Cathey, 263 Ark. 450, 565 S.W.2d 426 (1978).

By all accounts, Ms. Wood was a competitive athlete before the accident; afterward, she had to push herself to continue participating in cheerleading and softball. She had to give up playing basketball, and she was forced by her neck and back pain to severely restrict her participation in the other activities. Although she continued to appear with the other cheerleaders, she could not do any tumbling or "pyramid-building" and spent much of her time sitting with their sponsor. She testified that, mostly, she just yelled and waved her arms and even that hurt. Often, she was reduced to tears by her inability to keep up with the other girls. Now, as an adult with a full-time job, she testified about the problems her injuries have caused her at work. She said that she has to change positions frequently to avoid being in one position too long and sometimes stands up while using the computer. She also cannot sit up...