Perry v. Streittmatter

• Docket Number: A-23-034
• Decision Date: 26 December 2023
• Parties: DeTron L. Perry, appellant, v. Jacob L. Streittmatter, appellee.
• Court: Nebraska Court of Appeals

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DeTron L. Perry, appellant,
v.
Jacob L. Streittmatter, appellee.

No. A-23-034

Court of Appeals of Nebraska

December 26, 2023

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: KATIE L. BENSON, Judge. Affirmed.

DeTron L. Perry, pro se.

Mary M. Schott and Christopher J. Tjaden, of Evans &Dixon, L.L.C., for appellee.

RIEDMANN, ARTERBURN, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, Judge.

INTRODUCTION

Following a trial in the district court for Douglas County, a jury returned a verdict in favor of Jacob L. Streittmatter, finding that DeTron L. Perry failed to meet his burden of proof in his motor vehicle negligence action he filed against Streittmatter. On appeal, Perry challenges the district court's failure to (1) grant a directed verdict in his favor, (2) instruct the jury on expert witness testimony, (3) allow Perry to testify to certain damages, and (4) grant Perry's motion for new trial. We conclude the district court did not err in its rulings and therefore affirm the judgment in favor of Streittmatter.

BACKGROUND

Through an amended complaint filed in August 2022, Perry alleged that Streittmatter negligently operated his motor vehicle, resulting in a collision with Perry in which Perry was seriously injured. Streittmatter admitted a collision occurred, but denied the allegations of

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negligence and asserted that Perry's injuries, if any, were a result of his own negligence. Perry was represented by counsel at various stages throughout the proceedings, but prior to trial chose to represent himself.

In November 2022, Streittmatter filed a motion in limine to preclude claims of medical bills and lost wages at trial. Streittmatter asserted that although Perry provided the names of several treating physicians through discovery, he never identified anyone as an expert witness regarding medical bills, and that in response to a request for production, Perry stated that he was not pursuing lost wages as an item of damages. At a hearing on the motion, Perry confirmed he was pursuing a loss of earning capacity and not lost wages. The district court sustained the motion to preclude evidence of lost wages and reserved its ruling on the motion to preclude evidence regarding Perry's medical bills.

A jury trial was held from December 5-7, 2022, at the conclusion of which the jury found that Perry had failed to meet his burden of proof and returned a verdict for Streittmatter. At trial, Perry testified on his own behalf and presented the testimony of coworkers, a physical therapist, and Streittmatter. Streittmatter was the only witness for the defense. A summary of evidence relevant to Perry's assigned errors is as follows.

Perry testified that on May 1, 2019, he was traveling south on the North Freeway in Omaha, Nebraska, after work. Due to rush hour traffic, Perry was stopped in traffic when he suddenly heard a big boom, his body was thrown side to side, back and forth, and he hit his head on the steering wheel. Perry testified that prior to the collision there was about a car's length distance between his car and the one in front of him, but after the collision he was inches from that car. Perry stated that he had a bad headache, like a migraine, after the sudden impact to the rear of his car. He could not recall if he had a bruise on his forehead, but stated it was tender and painful. Perry testified that since the collision, he has had difficulties with attention, concentration, and memory.

Perry testified that after the impact, he immediately felt "scarring and acute pain in [his] neck, shoulder, lower back, and right leg." He stated that he and Streittmatter pulled over to the shoulder and Streittmatter got out of his car and asked permission to get inside Perry's vehicle. Perry stated Streittmatter was sweating, his face was nervous, and he was panicky with his movements. Perry testified that Streittmatter apologized and told Perry that he had wiped off his glasses and when he put them back on, he did not notice traffic had come to a complete stop. According to Perry, Streittmatter said he was a private detective for Douglas County and that they did not need to call the police.

Perry testified that he was transported to the emergency room, but clarified on cross-examination that he drove himself to the hospital. After X-rays were taken, Perry was discharged with muscle relaxers. He went to the hospital again on May 3, 2019, for complaints of head, neck, shoulder, and lower back pain. He was prescribed additional medication and told to see his primary physician. Perry was in another motor vehicle accident on May 6, and went to the hospital the next day for pain in his head, neck, shoulder, lower back, and leg. Perry testified that the accident of May 6 did not change his pain from the May 1 accident. Perry saw his primary physician on May 10.

Perry attempted to testify regarding medical expenses, but Streittmatter's foundational objections were sustained after a sidebar. During the sidebar, Perry informed the court that he had subpoenaed two physicians but that neither had appeared. The district court told Perry he could

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use the lunch break to contact the doctors, could make an offer of proof, or have another qualified witness testify on the issue. But it ruled that Perry could not testify to the amount of medical bills because foundation had not been laid as to the fairness, reasonableness, or necessity of the expenses.

On cross-examination, Perry was confronted regarding his report to medical care providers that he was struck while traveling 45 miles per hour. He explained he did not recall making that statement but that he had hit his head extremely hard that day, so it was possible he had suffered a concussion. He confirmed, however, that he was not diagnosed with one.

Perry admitted that he had been in an accident in September 2017, brought a claim against that driver, and received compensation. He agreed that he had an active lawsuit against the owner of the property where the 2017 accident occurred. Perry confirmed that in the lawsuit, which was filed in August 2021, he claimed lost wages, permanent injury and disability, permanent impairment of his earning capacity, physical pain and mental suffering, total disability and incapacity, and lost enjoyment of life; he confirmed that all those claims were related...