Hausman v. Cowan

• Decision Date: 15 October 1999
• Docket Number: No. S-98-333.,S-98-333.
• Parties: Debbie A. HAUSMAN, appellant, v. Garan J. COWEN and Heartfield Stone Construction Group, Inc., a Nebraska corporation, also known as Heartfield Stone Co., appellees.
• Court: Nebraska Supreme Court

601 N.W.2d 547

257 Neb. 852

Debbie A. HAUSMAN, appellant, v. Garan J. COWEN and Heartfield Stone Construction Group, Inc., a Nebraska corporation, also known as Heartfield Stone Co., appellees.

No. S-98-333.

Supreme Court of Nebraska.

October 15, 1999.

Daniel B. Cullan and Paul W. Madgett, of Cullan & Cullan, Omaha, for appellant.

Patrick G. Vipond and Raymond E. Walden, of Lamson, Dugan & Murray, Omaha, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

The automobile of Debbie A. Hausman, appellant, was struck from behind by a van driven by Garan J. Cowen while in the course of his employment with Heartfield Stone Construction Group, Inc. (Heartfield). The van was owned by Heartfield, a Nebraska corporation. Hausman sued Cowen and Heartfield, collectively referred to as "Cowen," to recover damages for injuries Hausman alleged she sustained as a result of the collision. At trial, Hausman sought a $2,000,000 award, and the jury awarded Hausman $10,000 in damages. Hausman appeals the verdict, claiming that the trial court erroneously refused to give her proposed instruction No. 19 and erred in denying her motion for new trial. We affirm.

STATEMENT OF FACTS

On August 11, 1989, Hausman's Camaro automobile was struck from the rear by a van driven by Cowen in the course of his employment for Heartfield. The collision occurred at a stoplight at the intersection of 42d and F Streets in Omaha, Nebraska. Trial evidence conflicted regarding the force of the impact. Some witnesses testified the impact was a small bump or jolt which occurred at 2 to 3 miles per hour. In contrast, Hausman testified that Cowen's van hit her car with "tremendous force." It was undisputed that the cost to repair damage to Hausman's car caused by the collision was $214.91.

Hausman did not request or receive medical care at the scene of the collision, and she continued on her way to work as a waitress at Johnny's Cafe. Three days later, she sought treatment from David Von Kerens, a chiropractor.

Hausman testified that after the accident, she suffered neck pain "like somebody was stabbing me in the neck with a stake all the time," eye pain and extreme sensitivity to light, mental "fog," and loss of memory, including loss of reading skills. Hausman also testified she experienced nausea and vomiting, facial skin discoloration, facial twitching and a sensation of tightness, nearly total loss of the use of her arms, a painful feeling that her lower back was "jammed," and depression. Medical records introduced into evidence showed that Hausman additionally complained to treatment providers that as a result of the collision, she suffered irregular menses, disrupted functioning of her thyroid gland, linguistic impairment causing her to speak backward, hair loss, dry skin, a 1-inch growth in height, and a weight gain of approximately 80 pounds. Hausman testified that her injuries were so severe and persistent that "[t]his pain just kept eating at me and eating at me, and I broke down." Hausman testified that she stopped working in August 1991 because she felt she could no longer perform the tasks required of her as a waitress and as a supermarket cashier.

During the period of August 1989 through September 1993, Hausman sought and received treatment from numerous health care professionals, including three psychologists; two chiropractors; and at least nine medical doctors, including two neurologists, two orthopedic specialists, an internist, a vascular surgeon, an otolaryngologist, and a pain control specialist. Following commencement of litigation, at Cowen's request, Hausman was additionally examined by an orthopedic surgeon, a psychologist, and a psychiatrist. None of the treatment providers could discern an anatomical basis for the symptoms and severity of pain that Hausman described. At least three of Hausman's health care providers, and both of the mental health professionals designated by Cowen, suggested that Hausman would benefit from mental health counseling to address her complaints. Records from many of the health care providers described unusual and dramatic behavior by Hausman, including wearing two pairs of sunglasses at the same time, exaggerated groaning during examinations, and markedly inconsistent descriptions of her physical symptoms.

Hausman continuously received chiropractic treatment from Von Kerens from August 1989 through the time of trial in January 1998, seeing him up to six times per week. In October 1993, Hausman sought care from Horst G. Blume, a neurosurgeon in Sioux City, Iowa. Blume diagnosed injury to Hausman's lumbar spine and the disks of Hausman's cervical spine, which he believed were caused by the motor vehicle collision with Cowen. By the time of trial, Blume had performed four fusion surgeries on Hausman's back. Hausman testified that she considered these surgeries essential to her recovery, stating that "[Blume] saved my life. I would have been dead."

On August 9, 1993, Hausman filed suit against Cowen in the district court for Douglas County seeking damages for injuries Hausman alleged she suffered as a result of the collision. Hausman's claims were tried to a jury January 20 through 29, 1998. She presented evidence that her special damages totaled more than $146,000, including charges by Von Kerens of $12,434.80 and charges by Blume of $67,354.75. Hausman offered expert witness testimony from Von Kerens and Blume regarding the cause and extent of her injuries. Von Kerens and Blume also testified that their charges, as well as the charges of every other health care professional whom Hausman consulted, were fair and reasonable.

Cowen denied that the damages claimed by Hausman were proximately caused by the collision and denied that the charges for Hausman's health care were fair or reasonable. At trial, Cowen presented expert witness testimony that all of the medical treatment rendered by Blume and most of the chiropractic treatment provided by Von Kerens were unnecessary and unreasonable.

Cowen presented the testimony of at least two expert witnesses that Hausman had a somatoform disorder, a condition explained in a psychiatric evaluation report authored by Terry Davis, M.D., in which "there are physical symptoms suggesting a physical disorder, but for which no demonstrable organic cause can be found, and which appear linked to psychological factors or conflicts."

Cowen presented evidence with respect to Hausman's prior and successive injuries exclusive of this collision. There was evidence that Hausman was involved in a separate automobile accident with another motorist on January 3, 1990, after her collision with Cowen.

At trial, Hausman offered proposed instruction No. 19, which Hausman purportedly based on Restatement (Second) of Torts § 457 (1965). The proposed instruction No. 19 submitted by Hausman read as follows:

If you find that the Plaintiff has suffered personal injury by reason of Defendants' negligence and if you find that the Plaintiff used reasonable care and diligence in securing competent physicians and surgeons for treating her injury, you may also find that the Defendants are liable for any additional harm and expense caused the Plaintiff by the negligence, mistake, or lack of skill of her attending physicians and surgeons.

The trial court refused to give this instruction, commenting: "I think as an abstract statement of the law, I think you're right, but I don't think the evidence gives rise to an inference of negligence or that the guy was mistaken or that his fusions and whatever were performed unskillfully. I'm not going to give that instruction." The trial court directed a verdict in Hausman's favor, finding Cowen negligent in causing the collision. Thus, the only issue submitted to the jury was the amount of damages to be awarded to Hausman. In closing arguments, Hausman's counsel requested that the jury award Hausman $2,000,000. The jury rendered a general verdict awarding Hausman $10,000. Hausman timely moved for a new trial, which was denied. Hausman appeals.

ASSIGNMENTS OF ERROR

Hausman claims that the trial court erred in refusing to give the proposed jury instruction No. 19. Hausman also claims that the trial court erred in overruling her motion for new trial.

STANDARDS OF REVIEW

To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction, (2) the tendered instruction is a correct statement of the law, and (3) the tendered instruction is warranted by the evidence. Walkenhorst v. State, 253 Neb. 986, 573 N.W.2d 474 (1998). In reviewing a claim of prejudice from instructions given or refused, the instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal. Cobb v. Sure Crop Chem. Co., 255 Neb. 625, 587 N.W.2d 355 (1998).

On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. Gallner v. Gallner, 257 Neb. 158, 595 N.W.2d 904 (1999).

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of discretion. A motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred. Phillips v. Industrial Machine, 257 Neb. 256, 597 N.W.2d 377 (1999).

The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by the evidence and bears a reasonable relationship to the elements of the damages proved. Jones v. Meyer, 256 Neb. 947, 594 N.W.2d 610 (199...