Mahoney v. Nebraska Methodist Hosp., Inc., S-95-330
| Decision Date | 28 February 1997 |
| Docket Number | No. S-95-330,S-95-330 |
| Citation | 560 N.W.2d 451,251 Neb. 841 |
| Parties | Mary MAHONEY, Appellee, v. NEBRASKA METHODIST HOSPITAL, INC., a Nebraska corporation, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.
2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.
3. Verdicts: Appeal and Error. A jury verdict will not be disturbed on appeal as excessive unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or that the jury disregarded the evidence or rules of law.
4. Evidence: Expert Witnesses. Expert testimony should not be received into evidence if it is evident that the witness does not possess such facts that enable him to express a reasonable, accurate conclusion as distinguished from a mere guess. Without an adequate basis of facts, the witness should not be allowed to give an opinion.
5. Trial: Evidence: Damages. Under the collateral source rule, the fact that the party seeking recovery has been wholly or partially indemnified for a loss by insurance or otherwise cannot be set up by the wrongdoer in mitigation of damages.
6. Jury Instructions. The purpose of an instruction is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict; with this end in view, it should state clearly and concisely the issues of fact and the principles of law which are necessary to enable them to accomplish the purpose desired.
7. Verdicts: Appeal and Error. A jury verdict will not be disturbed on appeal as excessive unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or that the jury disregarded the evidence or rules of law.
Joseph S. Daly, of Sodoro, Daly & Sodoro, P.C., Omaha, for appellant.
Gregory M. Schatz, Omaha, for appellee.
Nebraska Methodist Hospital, Inc., having admitted liability, appeals a jury verdict in favor of appellee, Mary Mahoney, in the amount of $400,000. Methodist Hospital asks this court to reverse the verdict and remand the cause because the trial court erred in excluding Methodist Hospital's expert testimony, in not admitting evidence of Mahoney's early retirement pension, and in instructing the jury on cosmetic deformity. We affirm the jury's verdict.
On July 13, 1990, police officer Mary Mahoney was attempting to provide crowd control in a riot disturbance in Omaha, Nebraska. While performing these duties, Mahoney was struck by a car. As a result, she suffered an injury to her right knee and was transported to a hospital for treatment. Mahoney ultimately had arthroscopic surgery on her right knee on September 11, 1990. Subsequent to this surgery, she returned to her duties as a police officer.
Despite the surgery, Mahoney continued to experience pain and mobility problems with her right knee. In February 1991, she sought the services of Dr. William M. Walsh, an orthopedic surgeon. Walsh first attempted to treat the injured knee with noninvasive procedures, such as physical therapy and taping to hold the kneecap in place. When these techniques failed to produce effective results, Walsh performed arthroscopic surgery on Mahoney's knee on April 8, 1991, during which the kneecap was realigned. Because of complications, Mahoney's knee filled up with blood, requiring a third surgical operation on the knee to drain the excess blood. Following Mahoney's recovery from the surgeries, she returned to her job as a police officer on August 1, 1991, with no restrictions. In releasing Mahoney back to work, Walsh was aware of the physical requirements of being a police officer.
Mahoney returned to Walsh for a 6-week followup on August 27, 1991, complaining of pain in her right knee. Walsh determined she was suffering from a condition known as reflex sympathetic dystrophy. This condition involves an imbalance of sympathetic nerve flow into an extremity, often resulting in pain, tingling, and numbness. In order to treat this condition, Walsh ordered a series of sympathetic nerve blocks to control Mahoney's pain. Mahoney was told these injections would offer relief to her leg in that they would dilate the blood vessels.
The injections were given by an anesthesiologist on an outpatient basis at Methodist Hospital. Prior to the actual injection, the contents of the nerve-block shot would be prepared by dissolving a guanethidine pill in a saline solution. The solution would then be put into a syringe. After draining the blood from Mahoney's leg with the use of a tourniquet, the anesthesiologist would inject the solution into her leg.
Mahoney was to receive a series of 16 shots, with the first commencing on August 29, 1991. Mahoney continued to work as a police officer with no restrictions during her first 12 nerve-block treatments. On October 31, she received her 13th nerve-block injection at Methodist Hospital. During the administration of this injection, Mahoney experienced severe cramping and burning in her leg. Tests were ordered to help determine the cause of Mahoney's pain. It was later determined that Mahoney had suffered a hypertonic saline injection injury because a pharmacist employed by the hospital had prepared the injection incorrectly. The hospital admitted its liability in this respect.
Mahoney was required to stay in the hospital for a period of 15 days following the damaging injection. Throughout her stay, she experienced extreme pain and swelling and required daily injections of morphine and other narcotic drugs. In the spring of 1992, Walsh concluded that Mahoney would be unable to return to her job because of the injuries she suffered to her knee in the car and hospital incidents. Mahoney subsequently retired from the Omaha Police Division in May 1992 and now receives a pension.
At trial, Mahoney offered evidence to establish the extent of her knee damage due to the hypertonic saline injection injury. Walsh testified that Mahoney's knee had a 30-percent permanent impairment, with 25 percent being attributable to the car accident and 5 percent attributable to the hypertonic saline injection injury at Methodist Hospital. In Walsh's opinion, the permanent impairment to Mahoney's knee because of the injection injury includes numbness in her calf; throbbing discomfort during long periods of standing; the possibility of edema, or swelling, of the right calf; and muscle spasms. At one point, Walsh testified that Mahoney might not have been able to return to work as a police officer even if the incident had not occurred at Methodist Hospital. However, Walsh stated that he informed the Omaha Police Division that Mahoney would be unable to return to the police force because of both the car accident and the injury sustained while receiving the nerve-block injection.
Methodist Hospital attempted to offer the deposition testimony of its own expert, Dr. Donald Gammel. In his deposition, Gammel testified that Mahoney's knee was 35 percent permanently impaired, with 25 percent attributable to the car accident and the remaining 10 percent attributable to the hypertonic saline injection injury. When Gammel was asked his opinion on whether Mahoney could have returned to work had the vascular injury at Methodist Hospital not occurred, counsel for Mahoney objected on the basis of foundation. During cross-examination at the deposition, Gammel stated that he was not aware of Mahoney's tasks as a police officer and that his opinion as to her not being able to return despite the saline injection injury was based on "lack of information" regarding her day-to-day activities as a police officer. The court sustained the foundation objection to Gammel's testimony.
The district court also sustained Mahoney's motion in limine preventing Methodist Hospital from introducing evidence that she was currently receiving an early retirement pension from the Omaha Police Division. The court made its ruling on the basis that any income Mahoney may be receiving from the police department was inadmissible under the collateral source doctrine.
The jury returned a verdict in favor of Mahoney and awarded her $400,000 in damages. Methodist Hospital appeals, challenging the damage award.
Methodist Hospital contends the district court erred in (1) not allowing Gammel to give his expert opinion as to whether Mahoney could have returned to work absent the Methodist Hospital incident, (2) not allowing Methodist Hospital to introduce evidence of Mahoney's pension, (3) giving an improper jury instruction, and (4) not granting a new trial because the jury award was excessive and given under the influence of passion or prejudice.
A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. McArthur v. Papio-Missouri River NRD, 250 Neb. 96, 547 N.W.2d 716 (1996); McIntosh v Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996).
When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Grand Island Latin Club v. Nebraska Liq. Cont. Comm., 251 Neb. 61, 554 N.W.2d 778 (1996).
A jury verdict will not be disturbed on appeal as excessive unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate as to indicate...
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