Monypeny v. Kheiv
| Decision Date | 01 April 2015 |
| Docket Number | No. W2014-00656-COA-R3-CV,W2014-00656-COA-R3-CV |
| Court | Tennessee Court of Appeals |
| Parties | BROOKS MONYPENY, ET AL. v. CHAMROEUN KHEIV |
Appeal from the Circuit Court for Shelby County
This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs' uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs' children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees' attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff's long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury's verdict, and because the trial court did not abuse its discretion, we affirm and remand.
KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
Robert L. Moore, Memphis, Tennessee, for the appellant, State Farm Mutual Insurance Company.
Thomas R. Greer and R. Sadler Bailey, Memphis, Tennessee, for the appellees, BrooksMonypeny and David Monypeny; Donald Capparella and Tyler Chance Yarbro, Nashville, Tennessee, for the appellees, Robert Edwin Sadowski and John Russell Sadowski.
OPINIONOn March 11, 2012, Mr. Emil Sadowski and his wife, Kathryn Sadowski (together the "Sadowskis") were injured in an automobile accident. At the time of the accident, Mr. Sadowski was driving a 2000 Lexus RX3 SUV, in which Mrs. Sadowski was a front-seat passenger. The Sadowskis had just finished lunch near the Wolfchase Mall in Memphis and were exiting the mall onto Highway 64/Stage Road. As the Sadowskis' vehicle exited onto Highway 64, it was hit by Mr. Chamroeun Kheiv's 2005 Subaru Impreza,1 which was traveling east on Highway 64. Mr. Kheiv had three passengers in his vehicle. At the time of the accident, Mr. Kheiv was 28 years old. Mr. Sadowski was 90 years old, and Mrs. Sadowski was 82 years old.
Prior to the accident, all of the evidence indicates that the Sadowskis were both in very good health despite their age. Mr. Sadowski was a diabetic, but he was able to care for himself and administer his insulin. Mr. Sadowski was also an avid exerciser, who rode his bicycle almost daily. He had undergone hip replacement surgery some years prior and had replaced his daily walks with bike rides. Likewise, Mrs. Sadowski was physically fit and mentally sharp. She and Mr. Sadowski ate lunch out at a restaurant most days. Mr. Sadowski also loved to drive. According to the testimony of family members, it was not uncommon for the Sadowskis to take day trips from Memphis to Little Rock or Nashville just to each lunch and drive around. There was no testimony that Mr. Sadowski's age had impaired his ability to safely drive. The couple was actively involved in their church, and they were also very involved with their family. At the time of the accident, the Sadowskis had been married for approximately thirty years, and it was the second marriage for both. Mrs. Sadowski had two children from her first marriage, Brooks Monypeny and David Monypeny. Mr. Sadowski had three children from his first marriage, Terri McCord,2 Robert Edwin Sadowski, and John Russell Sadowski.
The site of the accident, Highway 64, is a six-lane road, with a grass median in the center, separating the east-bound three lanes from the west-bound three lanes. The exit that Mr. Sadowski was using is designed to direct merging traffic into the right lane of Highway 64; however, it is possible for a vehicle to cross the three east lanes of Highway 64 from the exit to turn west onto Highway 64. As discussed infra, there is dispute as to whether Mr. Sadowski was turning right (east) onto Highway 64, or whether he was attempting to cross the three east lanes to go west onto Highway 64.
There was one eyewitness to the accident, Connie Taylor, an emergency room nurse from Nashville. She testified at the trial by deposition. Ms. Taylor stated that she was traveling east on Highway 64 in the middle lane, having just made a right turn from Germantown Road. According to her testimony, she saw Mr. Kheiv's vehicle in her rearview mirror, coming up "very fast" behind her. She stated that she initially thought the Kheiv vehicle was going to hit the back of her car; however, according to Ms. Taylor, Mr. Kheiv passed her vehicle on the right and almost immediately collided with the Sadowskis' vehicle. After impact, the Sadowskis' vehicle came to rest between two utility poles that were just east of the Wolfchase Mall exit. The Kheiv vehicle crossed the median and came to rest on the far north side of Highway 64, facing west. Ms. Taylor testified that she parked her vehicle by the Sadowskis' vehicle and got out to render help. She stated that Mrs. Sadowski complained of shortness of breath, pain in her chest, and that she had a cut on her leg that was bleeding. According to Ms. Taylor, Mr. Sodowski was confused, asking "what happened," and had some apparent injury to his face.
The Sadowskis were taken, by ambulance, to Baptist Memorial Hospital. While at the hospital, both of the Sadowskis were treated by Dr. Kamul Jit Mohan, a board-certified internal medicine specialist. Dr. Mohan testified at trial that Mrs. Sadowski's injuries were more acute that Mr. Sadowski's. Mrs. Sadowski presented with a broken neck at her C7 vertebra and injury to the ligaments supporting her spine. She also sustained injury to her aorta, which resulted in blood leaking into the pericardium. Mrs. Sadowski went into cardiac arrest shortly after she arrived at the hospital and had to be resuscitated. Although Mrs. Sadowski's injuries would normally require immediate surgery, Dr. Mohan testified that she was not a surgical candidate because her blood pressure would not stabilize due to the aortic leak. She was placed on a ventilator to help her breath but could not be weaned off the ventilator due to the problems with her blood pressure. Dr. Mohan stated that when he attempted to lower the amount of oxygen she received, her heart would go into atrial fibrillation. Because Mrs. Sadowski could not be weaned from the ventilator, Dr. Mohan had to perform a tracheotomy. Mrs. Sadowski subsequently developed a trachea infection due to pseudomonas. The infection caused the area around the tracheotomy to become red and inflamed and to produce foul-smelling discharge. Dr. Mohan stated that, approximately two or three days after the accident, Mrs. Sadowski suffered a stroke that affected her right side.A CT scan revealed that she had suffered one or two older strokes, but there is no evidence that these earlier ischemic incidents affected her daily life. Dr. Mohan stated that Mrs. Sadowski remained paralyzed on her right side. The stroke she suffered after the accident also resulted in the development of deep vain thromboses in her right leg and arm. Although the usual course of treatment would be blood thinners, Dr. Mohan testified that he could not give Mrs. Sadowski blood thinners because of her aortic injury. Accordingly, he had to insert a blood filter into her inferior vena cava. This resulted in additional pain, swelling, and stiffness in her right leg and arm.
Dr. Mohan further testified that after the first ten days in the hospital, Mrs. Sadowski was conscious and aware of her condition. He stated that from that point, "her suffering never stopped." She was prescribed very strong pain medications, including Dilaudid (which is six or seven times stronger than morphine, according to Dr. Mohan). Mrs. Sadowski suffered from depression and post traumatic stress disorder, which required psychiatric consultation and treatment with Xanax and Ativan. She developed a secondary infection, which Dr. Mohan called "healthcare acquired pneumonia." This required him to put her back on the ventilator. Mrs. Sadowski was also put on a feeding tube. Dr. Mohan and Mrs. Sadowski's family members testified that she had to be restrained at times because she would attempt to remove the tubes, which bothered her greatly. Due to her immobility, she developed decubitus ulcers. Although Mrs. Sadowski was moved to Baptist Restorative Care Hospital, a separate long-term acute care center, Dr. Mohan stated that she was still in an intensive care unit.
Unlike Mrs. Sadowski, Mr. Sadowski's injuries were not immediately life threatening. He presented at the hospital with back and chest pain. Approximately eight months prior to the accident, Mr. Sadowski broke his sternum in a fall. The chest pain was largely due to aggravation of the existing injury. Mr. Sadowski was, however, in a great deal of pain during his hospital stay. The family did not immediately tell Mr. Sadowski about the direness of Mrs. Sadowski's condition. Mr. Sadowski was discharged from the hospital on March 20, 2012 and was admitted to Baptist Rehabilitation in Germantown, where he was treated by Dr. Sunita Jain. Dr. Jain testified that Mr. Sadowski needed both physical and occupational therapies and required twenty-four hour nursing care. Dr. Jain opined that because Mr. Sadowski had no prior complaints of pain, the...
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