McKissick v. Frye, 68460

• Decision Date: 03 June 1994
• Docket Number: No. 68460,68460
• Parties: Vera Nadine McKISSICK, Appellee, v. Andrea S. FRYE, Appellant.
• Court: Kansas Supreme Court

Page 1371

876 P.2d 1371

255 Kan. 566

Vera Nadine McKISSICK, Appellee, v. Andrea S. FRYE, Appellant.

No. 68460.

Supreme Court of Kansas.

June 3, 1994.

Syllabus by the Court

1. A lawyer in his or her professional capacity before a tribunal shall not state or allude to any matter that the lawyer has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. A deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case. In assessing whether improper argument amounts to reversible error, great weight is given to the presence or absence of an objection and the curative effect of a well-phrased admonition to the jury.

2. Kansas courts follow the rule that if one party offers an inadmissible fact into evidence, the other party may introduce a similar inadmissible fact whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence. If the evidence is admissible, the doctrine of curative admissibility does not apply.

3. In order to raise the admissibility of evidence as an issue on appeal, the record must show a timely and specific objection. K.S.A. 60-404. If a continuing objection is lodged, failure to object when the evidence is subsequently re-admitted does not bar raising the issue on appeal.

4. Under our system of government, courts are instituted for the purpose of enforcing rights and redressing wrongs according to law. In jury trials, evidence is adduced for the purpose of ascertaining the truth, and instructions prepared by the court are given to inform a jury as to the law applicable to the facts. Jurors should ascertain the facts from the evidence, apply the law given them to the facts as they find them, and return a verdict accordingly. Within these limits, counsel may present a client's case in the light most favorable to the client.

5. Supervision over voir dire examination of the venire and control over the nature and extent of questioning are matters necessarily left to the sound discretion of the trial court. Courts must be conscious of the rights of litigants and that improper action of their counsel should not be charged against them unless such action results in basic unfairness. Basic unfairness must be determined in the first instance by the trial court. Its decision must rest on the exercise of judicial discretion. On appeal, we must determine whether the trial court abused its discretion. In order to perform this function, we must examine the alleged prejudicial material and from its nature determine whether it is so inherently prejudicial that a fair trial could not have resulted.

6. In a negligence action, recovery may be had only where there is evidence showing with reasonable certainty that the damage was sustained as a result of the complained-of negligence. Recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. To warrant recovery of damages, therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an estimate of the amount of loss.

7. Chiropractors are licensed under the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., and the practice of chiropractic is recognized as one of the healing arts. Chiropractors are allowed to treat patients within the scope of specific therapies permitted by that act.

8. The appellate courts are not to reweigh the testimony or pass on the credibility of witnesses.

John A. Bausch, of Benfer & Bausch, P.A., Topeka, argued the cause, and was on the briefs, for appellant.

Pedro L. Irigonegaray, of Irigonegaray & Associates, Topeka, argued the cause, and was on the brief, for appellee.

LOCKETT, Justice:

Plaintiff filed an action for injuries suffered in an automobile collision. The jury apportioned the fault at 20% to plaintiff and 80% to defendant and awarded $125,388.12 after adjustment for comparative fault. Defendant appealed to the Court of Appeals. In an unpublished opinion it affirmed the trial court, except the award to plaintiff of $30,000 for future medical expenses. The Court of Appeals found that there was not sufficient evidence to support the jury's award for future medical expenses. 859 P.2d 982. This court granted plaintiff's petition and defendant's cross-petition for review of the Court of Appeals decision. Defendant claims that the district court erred in: (1) allowing plaintiff to testify as to her lack of funds to seek medical treatment; (2) admitting prejudicial testimony; (3) admitting medical testimony without a foundation; and (4) allowing plaintiff's attorney to refer to insurance; defendant further claims the verdict was excessive. Plaintiff claims that the Court of Appeals improperly set aside the jury's award of future medical expenses.

Nadine McKissick was driving north on U.S. Highway 75 near Lyndon when Andrea Frye, who was southbound, drove her vehicle left of center and struck McKissick's automobile head-on. McKissick suffered injuries for which she subsequently filed this action. She claimed damages for past medical expenses of $9,624.15, unknown future medical expenses, past physical pain and suffering of $150,000, future pain and suffering of $200,000, and lost income of $28,805. Frye challenged McKissick's claimed damages and denied any negligence; in the alternative, she claimed McKissick was comparatively negligent.

McKissick had just entered onto Highway 75. The road was slick. She maintained a slow speed due to the weather conditions. She saw two cars approaching. McKissick did not see Frye's car pull into her lane or remember the collision. McKissick suffered a mild concussion, multiple contusions, abrasions, and broken skin on the left side of her forehead and scalp. She had severe neck pain that radiated down through her upper back. Her ankle was swollen and discolored.

Dr. Hornbaker, who specialized in internal medicine, was McKissick's physician. Dr. Hornbaker treated her for injuries resulting from the accident. All x-rays were negative. Dr. Hornbaker diagnosed that McKissick had suffered a "necklature sprain" and a strained ankle. McKissick continued to have problems with her ankle. A bone scan was completed approximately two months after the accident. The bone scan showed there was an abnormal uptake in one of her ankle bones which appeared to be a "reflex sympathetic dystrophy," an injury to the sympathetic nerve system that causes pain. Dr. Hornbaker described several methods of treatment. One of the treatments was a sympathetic block, where a local anesthetic is injected into the nerves to offer temporary relief.

Dr. Hornbaker first referred McKissick to Dr. Patel, a neurologist. The results of Dr. Patel's x-rays of the skull, the brain scan, and other tests were normal. Dr. Hornbaker then referred McKissick to Dr. Knappenberger, an orthopedic specialist, for pain in her right leg and ankle. Dr. Knappenberger noted that McKissick's ankle was swollen and she had a marked hypersensitivity to touching around the inner aspect of her ankle. He reviewed her x-rays and felt she had a "very minimal nondisplaced evulsion fracture on the lateral aspect of her foot," sometimes referred to as a chip fracture, which normally heals without incident. The chip fracture was on the outer side of her ankle, while the tenderness was on the inner side. The sensitivity was not consonant with the x-ray findings.

Dr. Knappenberger recommended that McKissick wear an air cast on her ankle and try to walk on it as much as possible, and he prescribed medication for the pain. When Dr. Knappenberger saw McKissick a month later, she appeared to be walking a little better. The treatment continued for another month, more improvement was noted, and the doctor decided to cut back on the medication dosage. McKissick, without the doctor's recommendation, began wearing an elastic ankle support rather than the air cast. He continued to see her, and she continued to complain of the same level of pain five months after the accident. Knappenberger last saw McKissick in July 1990 and told her that if she had any other problems to call him back. At the time of the deposition, February 1992, he had not had any calls from McKissick reporting any medical problems.

While Dr. Knappenberger was treating McKissick, Dr. Patel referred McKissick to Dr. Wright, a chiropractor, for problems in her neck, shoulders, lower back, and right ankle. Dr. Wright diagnosed her with "cervical myoligamentous strain, cervical intersegmental dysfunction, muscle tension, headaches and closed head trauma." Dr. Wright also treated her ankle problem. Dr. Wright testified the cause of McKissick's pain was myofascitis, which is an inflammation of the nerve. Dr. Wright testified McKissick would need care for the rest of her life for her ankle pain. On cross-examination, Dr. Wright admitted that at the initial office visit no diagnosis of an ankle problem was made. Although Dr. Wright claimed he treated her ankle as a secondary consideration to her other complaints and he remembered her ankle as being swollen every time she visited him (90 times over a period from April 1990 to January 1992), no notations were made in Dr. Wright's office records regarding the ankle.

Frye, the defendant, was called as a witness in the plaintiff's case in chief. Frye testified she had gone to Manhattan with her boyfriend, Travis Allen, to attend a high school basketball game. Instead they spent the night before the accident at a motel in Manhattan. Her boyfriend had to be back at school by noon the next day in Fort Scott. She did not know how fast she was going on Highway 75, but she had slowed to approximately 35-40 miles per hour behind another car. When she decided to pass that car, Frye...