Nelson v. Jantze
| Decision Date | 20 January 2015 |
| Docket Number | No. A-13-1018.,A-13-1018. |
| Parties | PHYLLIS L. NELSON, APPELLANT, v. LINDA K. JANTZE, PERSONAL REPRESENTATIVE OF THE ESTATE OF SAVANA L. RILEY, ET AL., APPELLEES. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.
Bernard J. Glaser, Jr., for appellant.
Robert B. Seybert and Gail S. Perry, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellees.
Phyllis L. Nelson appeals the order of the Lancaster County District Court granting the appellees' motion for summary judgment and dismissing her complaint with prejudice.
On the morning of February 11, 2010, Nelson was driving her vehicle northbound on 84th Street in Lincoln, Lancaster County, Nebraska, near O Street, at the intersection of 84th Street and Blue Sky/Sunridge. Riley was driving a vehicle owned by her mother, Linda K. Jantze, and her stepfather, Maurice D. Jantze, southbound on 84th Street and was approaching the same intersection as Nelson from the opposite direction. Riley's vehicle crossed thecenterline of 84th Street and struck Nelson's vehicle. Nelson was injured in the accident, which injuries required medical treatment and rehabilitation. Riley also sustained injuries and fell into a coma as a result of the accident.
Shortly after the accident, in March 2010, Nelson filed a complaint and an amended complaint against Riley and the Jantzes alleging negligence and seeking $175,000 in damages, future medical expenses, and any other general damages necessary. Riley and the Jantzes filed an answer and motion to dismiss admitting that there was an accident, but alleging that the accident was unavoidable as a result of an unforeseeable sudden loss of consciousness. In August 2010, Riley passed away as a result of injuries she sustained in the accident. Nelson amended her complaint to name the personal representative of Riley's estate, Linda, in lieu of Riley herself. Nelson's second amended complaint further increased her request for damages to $1.5 million.
In April 2013, the Jantzes filed a motion for summary judgment, alleging that there was no genuine issue of material fact. In response, Nelson filed a motion for partial summary judgment, alleging that there was no genuine issue of material fact as to fault and liability and that she was entitled to judgment on those issues. Nelson filed several other motions, including a motion for sanctions and a motion in limine requesting that the Jantzes be prohibited from calling or presenting the testimony of Dr. Lewiston Birkmann and Angela Morehouse regarding sudden loss of consciousness or epileptic seizures. Nelson filed a second motion in limine additionally requesting that the Jantzes be precluded from raising numerous other issues, including references to jury verdicts in other parts of the country, the use of the word "lottery," any statements regarding opposing counsel's past experiences, and statements regarding living in a "sue happy society" or "litigious society," allegations that Nelson was contributorily negligent or had aggravated a preexisting condition, any statement or evidence regarding whether Riley died in the collision, the receipt of insurance benefits by Nelson, and anything else not properly produced through discovery. Nelson filed a third and final motion in limine requesting the preclusion of any mention of Nelson's injuries or that she had insurance coverage for those injuries.
A hearing was held on the pending matters, and evidence was submitted to and received by the district court. At the hearing, Nelson withdrew the motion for sanctions and her third motion in limine. During the hearing, evidence was submitted that Morehouse was driving directly behind Riley at the time of the accident. Morehouse witnessed Riley slump over just prior to the accident such that Riley's head went down to the right side and dangled in a manner that indicated to Morehouse that Riley was not conscious. Morehouse observed Riley's vehicle veer into oncoming traffic and stated that she did not see any turn signals or brake lights or hear any tires screeching prior to the impact of Riley's vehicle into oncoming traffic.
Evidence was also submitted that in November 2006, 4 years before the accident, Riley experienced a seizure which caused her to lose consciousness. At that time, Riley was taken to the emergency room and, thereafter, underwent testing by a neurologist, Dr. Birkmann. Dr. Birkmann's testing showed that Riley likely suffered from a seizure disorder, and he prescribedher an anticonvulsant medication. In 2008, Riley tapered off her medication and ultimately stopped refilling her prescription in September. Dr. Birkmann gave no indication that Riley suffered any additional seizures between November 2006 and the accident.
Dr. Birkmann could not identify whether or not Riley initially had a seizure in 2010, which caused the collision, or if she suffered a seizure as a result of the head injury she sustained in the collision. In his deposition, Dr. Birkmann testified that from the witness' observations of Riley slumping over, "[t]hey don't describe a seizure, per se, just slumped over the steering wheel, so it's hard to say." Dr. Birkmann also indicated that it was not reasonable for Riley to know that she would have any additional seizure episodes at the time of the accident in 2010, specifically stating that "if she's been off of medication for that long and had not had any [seizures], then I would assume that she probably won't ever have one again."
The deposition of Dr. Robert McKeeman was also received at the hearing. Dr. McKeeman is a board-certified family physician who began treating Riley just after she was born in 1990. Dr. McKeeman testified that Riley's birth mother used cocaine when she was pregnant with Riley and that Riley was diagnosed with fetal alcohol syndrome. Dr. McKeeman continued to serve as Riley's family physician over the years, treating Riley for various illnesses as many children experience. In 2005, Riley was seen for headaches. In August 2010, Dr. McKeeman testified that Riley was suffering from significant traumatic brain injury and decerebrate neurological dysfunction from the injury she sustained in February 2010, in the collision with Nelson.
The district court overruled and denied Nelson's motion for partial summary judgment, denied Nelson's first motion in limine, and found that the parties had stipulated to each of the requests in Nelson's second motion in limine, except for paragraph 3 which was overruled and denied and paragraph 6 which was withdrawn by Nelson. As to the Jantzes' motion for summary judgment, the district court relied upon Storjohn v. Fay, 246 Neb. 454, 519 N.W.2d 521 (1994), in finding that Nebraska allows for a loss of consciousness defense under the rationale that where a driver is suddenly deprived of his or her senses by blacking out, the driver cannot comprehend the nature and quality of those acts. The district court found that in accordance with Storjohn v. Fay, supra, if the evidence was conflicting as to whether the accident was caused by a driver's sudden loss of consciousness and whether that loss was unforeseen was a question of fact for the jury; but, if the evidence pointed to only one reasonable conclusion, it was a question of law for the court.
Regarding loss of consciousness, the district court found that contrary to Nelson's assertions, expert testimony was not necessary to show loss of consciousness, which evidence was undisputed through the testimony of Morehouse. The district court found that expert testimony also corroborated loss of consciousness. As to foreseeability, the district court found that the undisputed facts demonstrated that the sudden loss of consciousness was not foreseeable because there was no evidence to show that Riley could have foreseen losing consciousness and there was no evidence that Riley had any seizure or seizure activity since November 2006. The district court concluded that the undisputed material facts demonstrated that Riley suffered a sudden unforeseeable loss of consciousness and that the affirmative defense applied as a matterof law. The district court granted the Jantzes' motion for summary judgment and dismissed Nelson's complaint with prejudice.
Nelson filed a motion for new trial, reconsideration, and rehearing, alleging, among other things, that the district court failed to address her "Shaffersman/Carlson/Daubert [sic] motion (motion in limine one)." The district court entered an order finding that it was not required to engage in a Daubert/Schafersman analysis, because the facts supported the sudden loss of consciousness defense and because there was no particularized scientific methodology or knowledge that would trigger the analysis; that there was no evidence to suggest anything other than that Riley suffered a loss of consciousness immediately before the accident; and that Morehouse was not testifying as an expert. The district court overruled Nelson's motion, and it is from that order that she has timely appealed to this court.
Nelson assigns that the district court erred by granting the Jantzes' motion for summary judgment based upon evidence that Riley sustained a sudden loss of consciousness and foreseeability. Nelson also assigns that the district court erred in admitting the testimony of Morehouse and by failing to hold a Daubert/Schafersman hearing regarding the testimony of Dr. Birkmann.
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