Rogen v. Monson

• Decision Date: 19 April 2000
• Docket Number: No. 20925.,20925.
• Parties: Beverly Jean ROGEN and Alton Rogen, Plaintiffs and Appellants, v. Lezli Jean MONSON, Defendant and Appellee.
• Court: South Dakota Supreme Court

609 N.W.2d 456

2000 SD 51

Beverly Jean ROGEN and Alton Rogen, Plaintiffs and Appellants, v. Lezli Jean MONSON, Defendant and Appellee.

No. 20925.

Supreme Court of South Dakota.

Argued November 30, 1999.

Decided April 19, 2000.

Rehearing Denied May 25, 2000.

N. Dean Nasser, Jr. of Nassar Law Offices Sioux Falls, and Michael W. Day of Quinn, Day & Barker, Belle Fourche, for plaintiffs and appellants.

Curt Ireland, Rapid City, for defendant and appellee.

AMUNDSON, Justice.

[¶ 1.] Beverly and Alton Rogen (Rogens) appeal the denial of their motion for new trial and additur on the grounds that insufficient evidence existed for the jury verdict of $4,800 and claim error in admission of expert testimony. We affirm.

FACTS

[¶ 2.] On October 15, 1995, Lezli Monson (Monson) was driving on I-90 in Pennington County, South Dakota. Monson was following a vehicle driven by sixty-four-year-old Beverly Rogen (Beverly). Beverly's husband Alton (Alton) was a passenger in the vehicle. Both automobiles eventually exited the interstate. As the cars approached the yield sign at the end of the exit, Monson looked back. As she looked forward, she saw that the brake lights were on and Beverly's car had stopped or nearly stopped. Monson was unable to stop her vehicle and collided with Beverly.

[¶ 3.] Both vehicles were operable after this collision and neither party claimed they were injured. After the police investigated, Beverly proceeded to drive home to the eastern part of the state.

[¶ 4.] Beverly claims that within two hours after the accident, pain began radiating in her lower back, down her right upper extremity and thigh, and in her right knee. On October 20, 1995, five days after the accident, Beverly went to see her family physician complaining of "pain in her lower lumbar spine with radiation to both buttocks and posterior leg down as far as knees." Beverly claims she needs a back fusion and knee replacement as a result of the accident.

[¶ 5.] On October 20, 1997, Rogens filed a personal injury action against Monson claiming she was negligent in colliding with Rogens and injuring Beverly. At the conclusion of evidence, the trial court granted a directed verdict to Rogens on the issue of liability, finding that there was "no emergency, legal excuse or unavoidable accident or contributory negligence." The issue of damages was submitted to the jury. The jury returned a general verdict awarding Beverly $4,800 and Alton $0. Rogens filed a motion for new trial and motion for additur on December 17, 1998. Both motions were denied.

[¶ 6.] Rogens appeal, raising the following issues:

1. Was the evidence sufficient to support the amount of the verdict and judgment?

2. Was it error to allow the percentage causation opinions of Dr. Hoversten under Daubert?

3. Whether the trial court erred in failing to grant an additur or new trial on damages?

DECISION

[¶ 7.] 1. Was the evidence sufficient to support the amount of the verdict and judgment?

[¶ 8.] Due to the similarity of issues one and three, issue one will be addressed along with issue three.

[¶ 9.] 2. Was it error to allow the percentage causation opinions of Dr. Hoversten under Daubert?

[¶ 10.] Rogens argue that the trial court erred in overruling their objection to Dr. Hoversten's testimony, that Beverly's knee and back injuries were 95 percent related to her preexisting condition and only 5 percent related to the accident, because it lacked "proper foundation and factual predicate to permit his opinions to be admitted and weighed by the jury." Rogens also claim that Hoversten had no scientific basis for this opinion.

[¶ 11.] Prior to trial, testimony was taken from Monson's expert witness, Dr. Hoversten. In this deposition, he testified on direct examination as follows:

Q. (ATTORNEY FOR MONSON): Doctor, I believe you also did an impairment concerning both her back and her knee, and I want to ask first of all what degree of permanent impairment, if any, do you believe Mrs. Rogen has to her low back?

A. (DR. HOVERSTEN): I believe she has a 20 percent impairment of the whole person to her low back.

Q. (ATTORNEY FOR MONSON): Doctor, based upon your exam, and reasonable medical probability, can you prorate how much of that preexisted the car accident and how much you would say was caused by the car accident itself?

(ATTORNEY FOR ROGENS): First of all I will object for lack of foundation, and I would like to ask some questions pursuant to that objection for the purpose of making further objections.

(ATTORNEY FOR MONSON): No, just make your objection, you can do your cross.

(ATTORNEY FOR ROGENS): We object for lack of foundation, also lack of any scientific basis for making such a proration.

Q. (ATTORNEY FOR MONSON): What is your opinion, Doctor?

A: (DR. HOVERSTEN): In my opinion I think that fully 95 percent of this impairment is due to the preexisting condition, and one could make the argument that a small part of it was made worse by the accident, perhaps 5 percent of this over all impairment from the accident itself. (Emphasis added.)

* * *

Q: (ATTORNEY FOR MONSON): Again do you have an opinion based upon reasonable medical probability as to the proration as to what percent of [the knee impairment] preexisted the car accident and what percent of that was related to the car accident?

A: (DR. HOVERSTEN): Again I think 95 percent of it is due to an underlying osteoarthritic problem, her obesity and her age, and that 5 percent of it could be related to a small injury sustained at the time of the accident which was quite insignificant and not complained about until several months following the accident. (Emphasis added.)

[¶ 12.] During Hoversten's deposition, Rogens' objection consisted solely of the general objection of "foundation" with no further explanation and the "lack of any scientific basis for making such a proration." On November 19, 1998, after the deposition was completed, Rogens filed a list of their objections to Hoversten's deposition and asked the trial court to rule on them. In this listing, Rogens' objection stated as follows: "lack of foundation and lack of scientific basis for making proration." The judge overruled this objection without explanation.

[¶ 13.] Rogens argue that Hoversten's testimony should not have been admitted because Hoversten's testimony was not relevant and reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court established specific standards for admission of expert scientific testimony. This Court followed Daubert in State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994) when we held that a trial judge must ensure that an expert's testimony rests on both "a reliable foundation and is relevant to the task at hand." We further held in Kuper v. Lincoln-Union Electric Co., 1996 SD 145, ¶ 41, 557 N.W.2d 748, 760, "when the trial court is ruling on the admissibility of an expert opinion, the trial court needs to exercise its gatekeeping function."

[¶ 14.] In the present case, the trial court exercised its gatekeeping function in regards to the proposed testimony from Rogens' expert witness, George Merlo.¹ A Daubert hearing was held during the trial and the court was provided with sufficient information on this expert's proposed testimony and ultimately excluded parts of Merlo's proposed testimony. However, no such Daubert hearing was ever requested or held regarding Dr. Hoversten's testimony. We have previously stated, to insure a meaningful appellate review, the trial court must be allowed to rule "whether or not the subject of [the] expert's opinion rested on a reliable foundation." See Kuper, 1996 SD 145, ¶ 41,

557 N.W.2d at 760.

[¶ 15.] The objection of "`lack of foundation' has no single defined meaning, [and] an objection of `lack of foundation' generally is of little or no use to a trial judge." Tolver v. State, 269 Ga. 530, 500 S.E.2d 563, 565 (1998). Because of the various meanings that can be derived from the "lack of foundation" meaning, without a more specific explanation for the missing foundation element, both the trial judge and this Court are faced with mere speculation and guesswork as to what the objection counsel's issue is. See id. By not providing anything more than a "general objection," Rogens have failed to create a clear record for this appeal. Rogens provided only a "general" objection; therefore, the trial judge was never able to understand the precise question or specific grounds upon which to rule. Rogens never pursued any additional course of action beyond their "general" objection. Counsel was obviously aware that when expert testimony is offered that conjures up questionable scientific testimony, a Daubert hearing should be sought. At least, that is what Rogens did when they made a motion in limine with regards to the testimony of the consulting engineer expert George Merlo. Here, Rogens request this Court to hold that the expert testimony of Dr. Hoversten should not have been admitted under Daubert. The trial court never had the opportunity to conduct its Daubert gatekeeping review of this expert as was the case with expert witness Merlo. The bare bones objection made on this medical testimony was totally insufficient. The record reflects that there was no meat put onto this generic bare bones objection so that a meaningful appellate review could be held. We generally do not reverse trial courts for reasons not argued before them.²

[¶ 16.] 3. Whether the trial court erred in failing to grant an additur or new trial on damages.

[¶ 17.] Our standard of review for a denial of a motion for new trial is well settled. We have often stated:

"Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury's verdict,

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