Martindale v. Ripp

Decision Date12 July 2001
Docket NumberNo. 99-0649.,99-0649.
Citation2001 WI 113,246 Wis.2d 67,629 N.W.2d 698
PartiesBruce MARTINDALE, Plaintiff-Appellant-Petitioner, v. Bruce A. RIPP, City of Beloit, Pekin Insurance Company, and Cities and Villages Mutual Insurance Company, Defendants-Respondents.
CourtWisconsin Supreme Court

For the plaintiff-appellant-petitioner there were briefs by Edward E. Grutzner and Grutzner, Holland & Vollmer, S.C., Beloit, and oral argument by Edward E. Grutzner.

For the defendants-respondents there was a brief by Ted Waskowski, Laura Skilton Verhoff and Stafford Rosenbaum, LLP, Madison, and oral argument by Ted Waskowski.


Bruce Martindale seeks review of an unpublished decision of the court of appeals that affirmed certain rulings to exclude evidence by the Circuit Court for Rock County, Edwin C. Dahlberg, Judge.1 These evidentiary rulings are the focus of this appeal.

¶ 2. In this personal injury case, the first issue presented is whether an oral surgeon who has testified that, in his opinion, an injury to plaintiff's temporo-mandibular joints (TMJs) was caused by the whiplash motion of the plaintiff's head and neck after plaintiff's car was struck from behind by a garbage truck, may be prohibited from explaining and describing to the jury the manner in which he thought the whiplash caused injury to the TMJs. The surgeon's excluded testimony was intended as part of the plaintiff's evidence establishing a causal link between the accident-related whiplash and the TMJ condition. The jury ultimately decided that the accident did not cause the TMJ condition.

¶ 3. The second issue presented is whether certain testimony about the plaintiff's fears about the possible complications of possible future surgery on his TMJs should have been excluded. This evidence was intended to support the plaintiff's claim for past, present, and future damages for mental distress.

¶ 4. After examining the record, we conclude that the circuit court erroneously exercised its discretion in excluding the testimony explaining the probable manner in which the plaintiff was injured. After conducting a harmless error analysis of this erroneous exercise of discretion, we conclude that the substantial rights of the plaintiff have been affected. Accordingly, we reverse and remand the case to the circuit court for a new trial.


¶ 5. The facts surrounding the automobile accident in this case are not in dispute. On the morning of September 14, 1993, Martindale was driving his 1992 Pontiac Bonneville in the City of Janesville. Martindale was in his early 50s. He stood six feet seven inches tall. He was such a tall man that the headrest in his vehicle "[sat] too low in any position."

¶ 6. Martindale was driving in the left lane on Highway 51. He came to a complete stop at an intersection just north of the Rock River, behind a car that was waiting to turn left. He later testified that he stopped his car approximately 20 to 25 feet behind the car ahead of him. As he waited for the car to turn, Martindale looked into his rear view mirror and saw a garbage truck "bearing down on [him]." He said he knew the truck was going to hit him. Hoping to avoid the collision, he pulled forward slightly from his dead stop and tried to go around the right side of the car in front of him, but his maneuver was blocked by the traffic in the right lane.

¶ 7. Martindale testified that the fully loaded garbage truck, which was owned by the City of Beloit (the City) and driven by Bruce Ripp, was traveling at an estimated speed of 20 to 25 miles per hour before it slammed into his car. Martindale estimated the speed from the observation he made in his rear view mirror and the impact of the collision. The force of the garbage truck drove Martindale's car into the vehicle ahead of him. His Bonneville finally stopped between 100 and 150 feet from its original position. The car suffered more than $9000 in damages. ¶ 8. Martindale testified that his head "whipped" backwards when the garbage truck collided with his car. His teeth "clashed" together when his head came forward. He chipped at least one tooth.

¶ 9. Martindale testified he initially had numbness from the accident, but after he "shook" the numbness he had "immediate pain" in his jaw and neck. He also had pain in his teeth. After talking with police, Martindale went to the emergency room of a local hospital for pain. He testified that he had a severe headache, a very sore neck, and pain in his teeth.

¶ 10. At trial, Martindale described the movement of his head and neck at the time of the collision. He said he thought his height and the type of headrest in the car contributed to his injuries. The "headrest was down" at the time of the crash, he said, facilitating the snapping back of his head as well as the clashing and chipping of his teeth. He claimed the whiplash movement of his head and jaw caused permanent injury to his TMJs—the joints connecting both sides of his jaw to his skull.

¶ 11. In the years after the accident, Martindale allegedly experienced a variety of health problems, primarily related to pain and discomfort in his TMJs. He sought treatment for his injuries from a number of doctors, but his primary caregivers were Dr. Harry Clark, his general dentist, and Dr. Doran E. Ryan, an oral and maxillofacial surgeon and professor at the Medical College of Wisconsin, to whom Martindale was referred by Dr. Clark.

¶ 12. The City admitted that Ripp was negligent in operating the garbage truck and that Ripp was acting on behalf of the City at the time of the accident. The City was at fault. However, the City disputed Martindale's claim that the accident had caused his alleged TMJ problem, and it challenged the extent of his injury claims.


¶ 13. Martindale filed suit against the City on April 30, 1996. His alleged damages included "severe personal injuries consisting primarily of permanent injury to his teeth," past and future hospital and medical expenses, loss of earnings and future earning capacity, and $9000 in damage to his car. By the time of trial, Martindale's claims for damages centered on the alleged injuries he suffered to his TMJs as a result of the accident. In addition, Martindale sought to recover for the alleged mental distress he had over potential future surgery on his jaw and the complications that might arise from the surgery. Martindale claimed all these damages resulted from the negligence of Ripp in causing the accident.

¶ 14. The gist of Martindale's case was that his TMJ injuries occurred as a result of (1) his head snapping back over his car's headrest in whiplash fashion when the garbage truck struck his car from behind, and (2) his head moving rapidly forward after his car struck the car in front of him.

¶ 15. The circuit court set a trial date for the spring of 1998, but the jury trial was not actually held until the fall. In May, the City filed a motion in limine to exclude certain testimony from Dr. Ryan's deposition. The circuit court entertained the motion at a hearing in June and ruled in large part in the City's favor. Later, Martindale moved the circuit court to reconsider its rulings. In September, the circuit court affirmed its earlier determinations.

¶ 16. Counsel for Martindale planned to present videotaped deposition testimony of the two doctors at trial. This videotaped testimony was reduced to a written transcript, and the parties debated the admissibility of the testimony, in some instances on a line-by-line basis. The parties planned to edit the videotape after the circuit court's rulings to eliminate any inadmissible testimony for trial.

¶ 17. The City argued that Dr. Ryan should not be able to testify about the "mechanism" by which Martindale sustained injuries. Although the City conceded that Dr. Ryan was qualified to treat and assess Martindale's jaw injuries, it claimed he was not qualified to give an opinion about how the garbage truck hitting Martindale's car specifically caused Martindale's head and jaw to react. At the September hearing, the City characterized Martindale's efforts with Dr. Ryan's testimony as an inappropriate attempt to use Dr. Ryan as an "auto reconstruction accident expert."

¶ 18. The circuit court agreed with the City that certain portions of Dr. Ryan's deposition should not be admitted. The court excluded statements of Dr. Ryan's opinion concerning the "mechanism" that caused Martindale's TMJ injuries and his opinion regarding possible complications from possible future TMJ surgery. In addition, the court ruled Martindale could not present three exhibits to the jury, all of which related to the excluded testimony.

¶ 19. The circuit court excluded several pages of testimony by Dr. Ryan relating to the "mechanism" by which Martindale was injured. Initially, the circuit court did not provide reasoning for its decision that approximately four pages of deposition testimony would be excluded. Later in the hearing, when the City sought to clarify which exhibits had been excluded, counsel for Martindale, Edward Grutzner, expressed surprise that the court had ruled earlier in the hearing to exclude the testimony concerning the "mechanism" or manner of injury. When the circuit court stated it had excluded that testimony, counsel said to the circuit court: "I didn't understand you to do so." The following exchange then occurred:

The Court: [T]here is no foundation for the doctor's expertise in this particular thing, and he is not giving his opinion in this testimony to a reasonable standard of reasonable probability. What they are trying to do is to tie the issue in with some type of whiplash injury. I have thrown that out, and having thrown that out, [the diagram exhibit related to this testimony] is not admissible. We have resolved that.
Mr. Grutzner: You say he doesn't have sufficient expertise in this area? Is that—because I filed his curriculum vitae, which is 20

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