Gross & Janes Co. v. Brooks

• Decision Date: 12 December 2012
• Docket Number: No. CA 12–139.,CA 12–139.
• Citation: 425 S.W.3d 795,2012 Ark. App. 702
• Court: Arkansas Court of Appeals
• Parties: GROSS & JANES COMPANY and Charles Harris, Appellants v. Cedric BROOKS, Appellee.

2012 Ark. App. 702

425 S.W.3d 795

GROSS & JANES COMPANY and Charles Harris, Appellants

v.Cedric BROOKS, Appellee.

No. CA 12–139.

Court of Appeals of Arkansas.

Dec. 12, 2012.

Kutak Rock, LLP, Fayetteville, by: Mark W. Dossett; Larkowski and Rogers, by: Gill A. Rogers, Little Rock, for appellants.

Chaney Law Firm, P.A., by: Don P. Chaney, Arkadelphia, Nathan P. Chaney, and S. Taylor Chaney, Arkadelphia, for appellee.

DAVID M. GLOVER, Judge.

Charles Harris and his employer, Gross & Janes Co. (collectively, Gross), appeal from a jury verdict awarding appellee Cedric Brooks damages for injuries he suffered in an automobile accident. In four points, Gross argues that the circuit court erred in allowing the introduction of certain evidence concerning Brooks's claims for future medical expenses, loss of earning capacity, and his need for in-home-care expenses, in denying its motion for directed verdict on those claims, and in instructing the jury on those claims. We affirm.

On September 11, 2006, Harris was driving a vehicle owned by Gross when he collided with a delivery truck in which Brooks was riding. Brooks filed suit on September 9, 2009, alleging negligence on the part of Gross. In addition to damages for permanent bodily injuries, Brooks also sought damages, both past and future, for, inter alia, medical expenses, pain and suffering, loss of income, mental anguish, and loss of earning capacity.

On October 7, 2011, three days before trial was to begin, Gross filed a motion seeking to exclude certain evidence or, in the alternative, a continuance. The motion asserted that Brooks had undergone an MRI on October 3, 2011, and Gross did not receive a copy of the report until October 6. The motion further asserted that Brooks informed Gross on the morning of October 7 that he was claiming an additional $200,000 in future medical expenses and that Gross's medical experts would be unavailable to review this new information until October 9, the day before trial.

In a response filed the morning of trial, Brooks argued that Gross had been dilatory in turning over reports from its medical experts, as well as in disclosing certain experts.¹ Brooks also asserted that the October 3 MRI was necessary to follow up on the conditions found in a June 2009 MRI. Brooks asked the court to deny Gross's motion on the basis that Gross was not prejudiced. In the alternative, Brooks asked the court to exclude the testimony and reports of Drs. Peeples and Henry.

Following a hearing immediately prior to trial addressing both Gross's motion to exclude the most recent MRI and evidence of future medical expenses and Brooks's motion to exclude Dr. Peeples's testimony, the court excluded the evidence concerning the MRI, but denied the motion as to evidence of future medical expenses. The court also granted a motion to exclude a report by Gross's expert, but denied the motion to exclude Dr. Peeples's testimony.

The case went to trial on the issue of damages over three days. Eleven of the twelve members of the jury agreed to a general verdict that awarded Brooks $540,000 in damages. Judgment on the jury's verdict was entered on October 25, 2011. This appeal followed.

Gross argues four points on appeal: (1) the circuit court erred in denying its motion to exclude evidence of Brooks's future medical expenses; (2) the circuit court erred in denying its motion to exclude evidence of Brooks's loss of earning capacity and his need for in-home assistance; (3) the circuit court erred in denying its motion for directed verdict on Brooks's claim for loss of earning capacity and his need for in-home assistance, and (4) the circuit court erred in instructing the jury on Brooks's claim for loss of earning capacity and his need for in-home assistance.

Gross first argues that the circuit court erred by not excluding evidence that Brooks was seeking additional damages for future medical expenses that was not, according to Gross, disclosed to Gross until the week before trial. Un appeal, we will not reverse a circuit court's ruling on the admission of evidence absent an abuse of discretion, nor will we reverse absent a showing of prejudice. See Grummer v. Cummings, 336 Ark. 447, 986 S.W.2d 91 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).

Gross relies on our decision in Battles v. Morehead, 103 Ark.App. 283, 288 S.W.3d 693 (2008), for its argument. That reliance is misplaced. In Battles, a personal-injury case tried solely on the issue of damages, the plaintiff testified about his recent treatment by a doctor that was not revealed in the plaintiff's discovery responses and was unknown to the plaintiff's own attorney. We reversed and remanded for a new trial, noting that the plaintiff's failure to supplement deprived the defendant of the opportunity to formulate his defense on the key issues and to prepare for trial.

In the present case, the dispute is not over undisclosed treatments or injuries, but over amounts of future medical expenses. Brooks had set forth his claim for future medical expenses in his complaint. He had also disclosed both the amounts of his past medical expenses, as well as future medical expenses that another doctor had estimated to be approximately $38,000. During discovery, Gross took the deposition of Dr. Stephen Bennett, who testified that Brooks would require future treatments for the rest of his life due to the permanent nature of the injury. However, Bennett was not asked about the cost of future treatments. At trial, Bennett testified that treatments cost between $90 and $160, depending on the services performed. In addition, Bennett testified that Brooks would need follow up x-rays and MRIs at approximately five-year intervals. Bennett estimated the cost of an x-ray at $120 and said that MRIs ranged between $1,800 from $2,400. During closing arguments, Brooks's attorney restated Bennett's figures to the jury and extrapolated those figures to range from $161,000 to $252,000 for future medical expenses, $1,300 for future x-rays, $12,600 for MRL for Brooks's remaining life expectancy of thirty-five years. After discussing other elements of damages, counsel suggested a total award of $741,700 for all elements of damages.

We cannot say that Gross was prejudiced by Brooks's failure to disclose the exact amount of future medical expenses he was seeking. First, future medical expenses need not be proved with the same specificity as past medical expenses. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). Brooks had disclosed both the amounts of past medical expenses, as well as future medical expenses. No one asked Dr. Bennett to calculate potential future expenses. Second, Gross failed to ask for a continuance to meet this evidence. At the hearing on the motion, Gross's attorney acknowledged that he had received the updated medical bills in the middle of September, but said that this was the first indication he had that Brooks had been receiving weekly treatments. Gross should have anticipated testimony on Brooks's future medical expenses and its failure to do so shows a lack of prejudice. See Arkansas State Hwy. Comm'n v. Lewis, 243 Ark. 943, 422 S.W.2d 866 (1968). This is part of the basis given by the circuit court in denying Gross's motion to prevent Brooks from testifying as to his future medical expenses. Finally, the case was submitted to the jury on a general verdict. We cannot know how much, if any, the jury awarded on this claim. As a result, Gross cannot show that it was prejudiced by this evidence.

We combine Gross's second, third, and fourth points because they relate to the same issue—Brooks's loss of earning capacity and his need for in-home care. The three points are that the circuit court erred in (1) denying its motion to exclude evidence of Brooks's claims for loss of earning capacity and the need for in-home assistance; (2) denying its motion for directed verdict because there was no substantial evidence to support Brooks's claims, and (3) instructing the jury on those claims because there was no evidence to support them.

Our standard of review of the denial of a motion for directed verdict is whether the jury's verdict is supported by substantial evidence. Armstrong Remodeling & Constr., LLC v. Cardenas, 2012 Ark. App. 387, 417 S.W.3d 748. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not this court's place to try issues of fact, rather, this court simply reviews the record for substantial evidence to support the jury's verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.

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. Source Logistics, Inc. v. Certain Underwriters at Lloyd's of London, 2010 Ark.App. 239, 374 S.W.3d 232. Moreover, this court will not reverse a circuit court's decision to give or reject an instruction unless there was an abuse of discretion. Id. A circuit court abuses its discretion by acting thoughtlessly and without due consideration. Id.

Gross first argues that the circuit court erred in denying its motion to exclude evidence supporting Brooks's claim for loss of earning capacity on the basis that, during opening statements, Brooks's attorney provided the jury with figures to support the claim but had failed to disclose those figures to Gross during discovery. In other words, Gross is claiming that it was surprised by these figures.

In its brief to this court, Gross argues that Brooks had not disclosed the figures in response to discovery requests seeking an itemization of Brooks's damages. It also seeks to incorporate its arguments concerning Brooks's failure to supplement his...