Rood v. Kansas City Power and Light Co.

• Decision Date: 29 April 1988
• Docket Number: No. 60636,60636
• Parties: Christina ROOD, et al., Appellants, v. KANSAS CITY POWER AND LIGHT COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 502

755 P.2d 502

243 Kan. 14

Christina ROOD, et al., Appellants, v. KANSAS CITY POWER AND LIGHT COMPANY, Appellee.

No. 60636.

Supreme Court of Kansas.

April 29, 1988.

Syllabus by the Court

1. An additur may be allowed on the same basis as a remittitur, that is, by allowing the party affected (the defendant in case of additur) to accept a verdict for the added amount in lieu of a new trial.

2. A Kansas lawyer has a duty not to assert or to continue to press a claim or defense once counsel knows he has no evidence to support it.

3. The purpose of K.S.A. 60-2007 is not to prevent a party from making bona fide claims or defenses, but to protect litigants from harassment in clear cases of abuse.

4. Two separate requirements must be met before attorney fees and expenses can be assessed pursuant to K.S.A. 60-2007(b): (1) The claim asserted was without reasonable basis in fact; and (2) the claim was not asserted in good faith.

5. Under the factual circumstances set forth in the opinion, the trial court did not abuse its discretion in imposing sanctions against plaintiff's attorneys under the provisions of K.S.A. 60-2007.

Elizabeth A. Carson, of Carson & Fields, Overland Park, argued the cause, and was on the brief, for appellants.

Richard T. Merker, of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, argued the cause, and Mark V. Bodine, of the same firm, was with him on the brief, for appellee.

PRAGER, Chief Justice:

This is a personal injury action in which the plaintiff, Christina Rood, sought to recover damages from the defendant, Kansas City Power and Light Company (KCPL), for injuries suffered when plaintiff was struck by a 35-pound metal spool which fell off the back of a moving KCPL truck trailer. The spool struck the plaintiff in the rear as she was walking along the adjoining sidewalk.

The case was tried to a jury which awarded plaintiff damages in the total amount of $2,000. In a post-trial proceeding, the trial court assessed attorney fees against plaintiff's counsel as a sanction for continuing to claim punitive damages without a reasonable basis and in bad faith, pursuant to K.S.A. 60-2007. Plaintiff and plaintiff's attorneys appealed and the case was assigned to the Supreme Court.

At the trial, there was no factual dispute as to how the accident occurred. An eyewitness, who testified on behalf of the plaintiff, observed the 35-pound spool fall off the KCPL truck trailer, roll down the street, and strike the plaintiff. The only real dispute in the case was the nature and extent of plaintiff's injuries and the need for certain medical services which were provided her.

Plaintiff appealed the judgment for $2,000, claiming that the trial court erred in its evidentiary rulings. Plaintiff first appeals from the refusal of the trial court to admit into evidence the medical bill of Dr. Luis Alvarez in the amount of $580 for heat and ultrasound treatments performed on plaintiff's buttock. Dr. Alvarez was one of several doctors who examined and treated plaintiff. He did not testify at the trial. At the trial, before the jury, plaintiff called as a witness Dr. Bernard Abrams, a Missouri physician. Dr. Abrams examined the plaintiff following the accident. At that time, her chief complaint was that she had a cyst in her left buttock, jumping of nerves in the left thigh, and headaches. Plaintiff informed Dr. Abrams that her problems occurred after she was struck by the metal spool. In November 1984, plaintiff was examined by Dr. Alvarez for left buttock pain and left thigh pain. A diagnosis of a cyst in the left buttock was made. Physical therapy and ultrasound treatments were provided by Dr. Alvarez which did not prove beneficial and were stopped after about six weeks.

Dr. Abrams described plaintiff's symptoms in great detail. He gave the plaintiff a thorough examination and found a freely moveable cyst in the middle portion of her left buttock. In Dr. Abrams' opinion, absent preaccident complaints about the cyst, it was reasonable to suppose that the cyst was caused by the blow suffered in the accident. He was uncertain as to whether the cyst had existed prior to the accident, but was certain that a blow or trauma may cause a cyst. He recommended that the cyst be removed by surgery. Dr. Abrams testified that he was familiar with the treatments given plaintiff by Dr. Alvarez, and, in his judgment, plaintiff had been treated in a manner which was standard for her condition by receiving some form of heat, microwave, ultrasound, and diathermy. These treatments are all forms of heat which penetrate the tissues in order to treat a cyst.

In her testimony at the trial, Christina Rood testified that after her injury she first saw Dr. Schechter, and later was examined by Dr. Alvarez, who treated her for six weeks and then discharged her. Plaintiff was handed a copy of Dr. Alvarez's medical bill which contained a number of items unrelated to any injury suffered in the accident. These unrelated items were eliminated from the proffered bill. Plaintiff claimed that she had incurred medical expenses for the treatments by Dr. Alvarez in the amount of $580.

When plaintiff's counsel offered Dr. Alvarez's bill into evidence as Exhibit 9, counsel for the defendant objected on the basis that there was no proper foundation to support the reasonableness or necessity of the medical bill or to link the treatments with the accident. The trial court sustained the objection. Plaintiff then testified that the dates of the medical services listed in Dr. Alvarez's medical bill were correct and that she was treated by Dr. Alvarez during the months of November and December 1984, either two or three times a week. She testified that the treatments gave her temporary relief from the pain.

Plaintiff maintains that the trial court erred in sustaining defendant's objection to the introduction of the medical bill of Dr. Alvarez for want of a proper foundation. Kansas law requires that medical expenses be necessary and reasonable. Lewark v. Parkinson, 73 Kan. 553, 85 P. 601 (1906). The reasonableness and necessity of medical bills are questions for the jury. Cansler v. Harrington, 231 Kan. 66, 643 P.2d 110 (1982). In Cansler, the injured plaintiff testified in detail about the doctors she had visited and the treatments she had received. As in this case, there was medical testimony as to the necessity for the treatment. This testimony was held to be sufficient to establish a foundation for the medical bills. Our decision in Cansler requires only that the medical bill be relevant to be admitted, and that any questions about the amount of the bill go to the weight of the evidence and not its sufficiency. Following the admission of the medical bill into evidence, the defendant is, of course, free to challenge the necessity and amount of any medical charges. As in Cansler, the plaintiff here testified as to the treatments she received and the benefit therefrom. She testified, without equivocation, that the treatment was for pain in her left buttock, and that her buttock was bruised and sore following the accident. When she sought treatment from Dr. Alvarez, he found a cyst in her left buttock. The cyst was a constant source of pain and was positioned in the same place where the plaintiff had been struck by the spool. There was evidence that such cysts could result from a blow. Plaintiff testified that she saw Dr. Alvarez two or three times a week for six weeks and received temporary benefits. Although Dr. Alvarez did not testify, Dr. Abrams testified that the ultrasound and heat treatments of Dr. Alvarez were standard. We have concluded that there was sufficient foundation to show the relevance of the medical bill and that it was necessary as a result of plaintiff's injury. In our judgment, the refusal of the trial court to admit the medical bill into evidence for want of sufficient foundation was error which prejudiced the rights of the plaintiff. The jury awarded the plaintiff a total of $2,000, and the admission of the Alvarez medical bill could have reasonably increased her jury award by $580.

The second point raised on the appeal is that the trial court erred in refusing to allow plaintiff's counsel to follow a line of questioning initiated by a juror. At the beginning of the trial, Judge McClain advised counsel that he was going to allow the jury to ask questions at the conclusion of each witness's testimony. The procedure to be followed was for the judge to authorize a juror to write out a question and to hand it to the judge. The judge would then permit counsel to object at the bench outside the hearing of the jury. In the course of the trial, questions which are not involved on this appeal were asked by individual jurors. The propriety of questioning by the jury is not an issue raised on this appeal.

During the defendant's case in chief, Gary Gillum, a KCPL employee who was in the truck at the time the spool came off, identified a photograph marked defendant's Exhibit C as an actual picture of a metal spool. He testified that the spool on the KCPL truck on the day of the accident was identical to that shown in Exhibit C. However, the metal spool shown in defendant's Exhibit C was attached to a crossbar support and secured by four bolts. Pictures of defendant's trailer taken following the accident showed that the spool which injured plaintiff was actually mounted on a T-bar and secured by spot welds, not bolts. The discrepancy was noted by a juror. At the conclusion of Gillum's testimony, a juror asked this question: "Why has the design change from the T-bar welding arrangement to a crossbar or bolted arrangement been made?" The witness responded, "I really can't tell you. I suppose one is about the same as the other one, but I can't really tell you that. I don't know."

Plaintiff's counsel then sought to ask Gillum if a locking bolt arrangement, in Gillum's opinion, is stronger than a weld. De...