Ketteler v. Daniel

• Decision Date: 13 December 1996
• Docket Number: No. S-94-990,S-94-990
• Citation: 556 N.W.2d 623,251 Neb. 287
• Parties: Marilyn A. KETTELER, Appellant, v. Carl J. DANIEL, Appellee.
• Court: Nebraska Supreme Court

Page 623

556 N.W.2d 623

251 Neb. 287

Marilyn A. KETTELER, Appellant, v. Carl J. DANIEL, Appellee.

No. S-94-990.

Supreme Court of Nebraska.

Dec. 13, 1996.

Syllabus by the Court

1. Trial: Expert Witnesses. The trial court initially determines whether expert testimony will assist the trier of fact.

2. Trial: Expert Witnesses. The decision of whether expert testimony will assist the trier of fact depends upon the qualifications of the witness, the nature of the issue on which the opinion is sought, the foundation laid, and the particular facts of the case.

3. Trial: Expert Witnesses. Expert opinion should not be admitted if the expert does not possess sufficient facts to enable him to express a reasonably accurate conclusion.

4. Witnesses: Testimony. When a party, acting as a witness, changes his testimony without offering a reasonable explanation, the altered testimony is discredited and disregarded as a matter of law.

5. Witnesses: Testimony: Juries. An inconsistent statement by a nonparty witness is a factor to be considered by the jury when determining the weight and credibility to be given the witness' testimony.

6. Hearsay. Learned writings regarding specialized areas of knowledge are clearly hearsay.

7. Trial: Appeal and Error. Where the grounds specified for the objection at trial are different from the grounds advanced on appeal, nothing has been preserved for an appellate court to review.

8. Jury Instructions. A trial judge has a duty to correctly instruct jurors on the law.

9. Jury Instructions. While proposed jury instructions submitted by either party assist the court in assessing the soundness of its instructions, submission of proposed instructions does not relieve a party from indicating to the court at that time whether any omission has been made in the instructions.

10. Jury Instructions. Failure to object to jury instructions during the instruction conference prohibits counsel from objecting at a later time.

11. Negligence: Damages. A person injured as a result of another person's negligent acts is entitled to recover all damages which proximately resulted from those acts, including damages resulting from aggravation of a preexisting condition.

Michael F. Coyle and Michael J. Mooney, of Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellant.

David M. Woodke and Francie C. Riedmann, of Gross & Welch, P.C., Omaha, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WHITE, Chief Justice.

Appellant, Marilyn A. Ketteler, filed suit against appellee, Carl J. Daniel, for injuries sustained in a collision on April 26, 1991. Liability was admitted, and trial to a jury was limited to the question of damages. The jury returned a verdict in favor of Ketteler of $42,875.94. The amount was subsequently reduced to $35,541.41 when credit for advance payment was made.

Beginning in 1974, Ketteler noticed lumps in her breast, which she had removed by Dr. John Gatewood. The problem reoccurred in 1977, at which time Dr. Gatewood removed the tissue from both of Ketteler's breasts for the purpose of decreasing her heightened risk of cancer. At that same time, Ketteler's breasts were reconstructed with silicone gel implants.

On April 26, 1991, Ketteler and Daniel were involved in an automobile accident at an intersection in Norfolk, Madison County, Nebraska. Daniel ran a stop sign, causing Ketteler to broadside Daniel's vehicle. During the initial impact, Ketteler's car spun, her shoulder restraint tightened, and her body slammed into the restraint. The initial collision caused Ketteler's car to spin counterclockwise, which caused the vehicles to collide a second time. As the vehicle spun, Ketteler's body continued to go forward, and as described by Ketteler, the "seat belt raked across, clear across, my chest."

Ketteler alleged that she suffered physical injuries as a result of the accident, including the rupture of her silicone breast implants. Although she did not seek immediate medical attention, she went to the Antelope Memorial Hospital emergency room to see her family physician, Dr. Dwaine Peetz, 3 days later. According to Dr. Peetz' records dated April 29, 1991, Ketteler's seatbelt had squeezed her right implant, the area of the right implant was tender, and she had bruising in her right knee.

Ketteler continued to see Dr. Peetz for several months after the accident because she had been suffering from neck pain and flulike symptoms. In December 1991, Ketteler went to Dr. Peetz' office, insisting that she be scheduled for a mammogram. Due to scheduling conflicts, Ketteler went to the University of Nebraska hospital in Omaha on January 22, 1992, to have a mammogram. The mammogram revealed that Ketteler's implants had ruptured, so Dr. Peetz advised her to see a plastic surgeon.

On January 30, 1992, Ketteler saw Dr. David Finkle. During the examination, Dr. Finkle observed that the implants were in a position higher than normal and that the left implant was soft, while the right implant was hard. At that time, Ketteler reported pain under her arm. Dr. Finkle also reviewed the mammogram results. These observances led Dr. Finkle to conclude that both implants had ruptured as a result of the automobile accident on April 26, 1991, and had to be removed. The implants were removed on April 10, 1992.

Dr. Finkle testified concerning the examination and surgery. He testified that the implant and body capsule around the implant (capsule) were "totally disrupted and unorganized." Dr. Finkle also testified that while he observed tears in the implants, he did not observe tears in the capsules. Dr. Finkle observed that there was free-floating gel outside of the implant, but he did not discover any gel outside of the capsule. Finally, Dr. Finkle stated that he did not see any hemosiderin, which is a deposit present in tissues when there has been recent bleeding.

Dr. Edward Baccari, a plastic surgeon retained by Daniel, testified that Ketteler's implants failed due to time-related deterioration. His opinion was based in part on discovery documents, depositions of Dr. Finkle, letters, photographs, and medical records. Dr. Baccari's opinion as to causation was the subject of foundational objections and motions to strike by Ketteler.

Dr. William Palmer, a rheumatologist who also testified on behalf of Daniel, gave his opinion as to Ketteler's rheumatological status. On February 28, 1994, Dr. Palmer examined Ketteler. At that time, Ketteler complained that she had a lot of pain in her neck and back, that she was stiff, and that she was suffering from severe fatigue. Ketteler informed Dr. Palmer that the pain in her joints and throughout her body had interfered with her ability to do housework and participate in athletics. Ketteler also stated that prior to the accident she had suffered from neck, low-back, and other joint pain.

As part of Dr. Palmer's examination, he examined Ketteler's musculoskeletal system. More specifically, Dr. Palmer looked for trigger points, or areas of tenderness, at the base of Ketteler's skull, on her spine, at the top of and in between her shoulder blades, over her hips, at the inner aspects of her knees, and at the outer aspects of her elbows. He discovered approximately 12 trigger points. In addition to examining Ketteler, Dr. Palmer reviewed the medical records of a Lincoln physician, Dr. David Cooley, which were received into evidence.

Dr. Palmer testified that in his opinion Ketteler was suffering from fibromyalgia on the date of her examination. Fibromyalgia is a soft-tissue pain syndrome which causes patients to experience generalized musculoskeletal pain in the neck, back, and joints. Dr. Palmer stated that Ketteler's fibromyalgia was not caused by the accident. To the contrary, it was Dr. Palmer's opinion that the condition existed long before the accident. He based his opinion on the fact that Dr. Cooley diagnosed Ketteler with fibrositis (i.e., fibromyalgia) in 1980 and that musculoskeletal complaints were recorded throughout the preaccident medical summaries prepared by Daniel's counsel.

Ketteler raised a foundational objection to Dr. Palmer's testimony because his testimony was contradictory to statements he had made in a medical report prior to trial. In the report, Dr. Palmer stated that he was unable to confirm Dr. Cooley's examination and, consequently, was unable to determine the date of the onset of Ketteler's condition.

At trial, Ketteler argued that there may be a link between autoimmune disease and silicone poisoning, and testified that she feared that she had acquired or may acquire in the future an autoimmune disease as a result of her implant ruptures.

Dr. John Hurley, a rheumatologist, testified on behalf of Ketteler. Dr. Hurley stated that he could not tell Ketteler with a reasonable degree of medical certainty that she would not get an autoimmune disease in the future. On cross-examination, Daniel attempted to impeach Dr. Hurley by questioning him about an article in The New England Journal of Medicine which concluded that there is no association between breast implants and connective-tissue diseases. On direct examination, Dr. Palmer also testified as to the conclusion reached by the article in the journal. Ketteler objected to Dr. Palmer's testimony on the basis of foundation.

At the conclusion of the trial, an instruction conference was held. Ketteler objected to jury instruction No. 6, which stated that "[t]here is evidence that the plaintiff had a neck, back and hip condition prior to the accident of April 26, 1991. The defendant is liable only for any damage that you find to be proximately caused by the accident of April 26, 1991." Ketteler argued that the instruction only partially stated the law and that her proffered instruction more aptly reflected Nebraska law. More specifically, the proffered instruction recognized Ketteler's preexisting problems, as...