Rudy v. Bossard

• Decision Date: 28 February 2000
• Docket Number: No. 99-120.,99-120.
• Citation: 997 P.2d 480
• Parties: Hazel RUDY, Appellant (Defendant), v. Sharon BOSSARD and Lawrence L. Bossard, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

997 P.2d 480

Hazel RUDY, Appellant (Defendant), v. Sharon BOSSARD and Lawrence L. Bossard, Appellees (Plaintiffs).

No. 99-120.

Supreme Court of Wyoming.

February 28, 2000.

Representing Appellant: Timothy W. Miller of Reeves & Miller, Casper, Wyoming.

Representing Appellees: Patrick M. Hunter, Casper, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and HILL, JJ.

MACY, Justice.

Appellant Hazel Rudy appeals from the judgment entered by the trial court after a jury returned a verdict in favor of Appellees Sharon Bossard (Sharon) and Lawrence Bossard (Lawrence).

We affirm.

ISSUES

Rudy presents the following issues for our consideration:

1. Whether the trial court prejudicially erred by admitting Plaintiffs' Exhibit 13, the hearsay report of a doctor who did not testify at trial.

2. Whether the trial court prejudicially erred by admitting Plaintiffs' Exhibit 14, a 113-page pain diary composed by appellee Sharon Bossard.

3. Whether the trial court erred in denying defendant's motion for judgment as a matter of law on Sharon Bossard's claim for future medical expenses.

4. Whether the trial court erred by failing to deduct from the Judgment the settlement payment appellees received from appellant's alleged employer, C & Y Transportation.

FACTS

This case stems from an automobile accident which occurred in the morning of January 24, 1996. Rudy was driving a pilot car accompanying an oversized load. She entered I-25 from an on-ramp in Casper and immediately steered to the left, across the right-hand lane of traffic, and into the left-hand, or passing, lane.

At the same time, Lawrence was driving a van in the left-hand lane of I-25, and his wife, Sharon, was riding in the front passenger seat. Rudy steered her car directly in front of the Bossard vehicle, and the two vehicles collided. Although Sharon did not state at the scene of the accident that she was injured, she noticed pain in her neck, right shoulder, and right lower back over the course of the day. Sharon sought treatment at an emergency room on January 25, 1996. The emergency room physician diagnosed her condition as seat belt trauma.

Sharon's personal physician, Johnny Mack Tooke, M.D., examined her in March 1996. He determined that Sharon was suffering from a cervical sprain and muscle spasms. Dr. Tooke prescribed an anti-inflammatory medication and directed Sharon to receive physical therapy. In August 1996, Dr. Tooke referred Sharon to Lawrence Jenkins, M.D., an orthopedic surgeon, because she was still experiencing pain in her right lower back. Dr. Jenkins ordered an MRI scan and a CT scan of Sharon's back. The tests revealed that Sharon had a fragmented facet joint between the third and fourth lumbar vertebrae.

The Bossards filed a complaint in the district court against Rudy and her employer, C & Y Transportation Co. C & Y Transportation settled with the Bossards, and the claims against it were dismissed. The Bossards tried their claims against Rudy to a jury in November 1998. At the conclusion of the trial, the jury returned a verdict finding Rudy ninety percent at fault and Lawrence ten percent at fault. The jury also found that Sharon's damages were $90,000 and Lawrence's damages were $10,000. Rudy asked the trial court to reduce the amount of the judgment against her by $5,000 to account for C & Y Transportation's settlement with the Bossards. The trial court refused her request and entered a judgment which was consistent with the jury's verdict. Rudy filed a timely notice of appeal.

DISCUSSION

A. Evidentiary Rulings

Rudy claims that the trial court erred by allowing Plaintiff's Exhibit 13 and Plaintiff's Exhibit 14 to be admitted into evidence because they were inadmissible hearsay. Trial courts have discretion in determining whether or not evidence is admissible. Clark v. Gale, 966 P.2d 431, 435 (Wyo. 1998). We will reverse a trial court's determination concerning the admissibility of evidence if the trial court abused its discretion. Id.; Hodges v. State, 904 P.2d 334, 340 (Wyo. 1995). "A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could [have] reasonably conclude[d] as it did." Hilterbrand v. State, 930 P.2d 1248, 1250 (Wyo.1997).

Even when this Court determines that the trial court erred in ruling on the admissibility of evidence, we disregard errors which are harmless. W.R.C.P. 61; W.R.A.P. 9.04; W.R.E. 103; see also Clark, 966 P.2d at 435

. "An error warrants reversal only when it is prejudicial and it affects an appellant's substantial rights." Candelaria v. State, 895 P.2d 434, 439-40 (Wyo.1995). We reverse a judgment if an error in the admission or exclusion of evidence causes "`a miscarriage of justice or result[s] in damage to the integrity, reputation, and fairness of the judicial process [or possesses] a clear capacity to bring about an unjust result.'" Natural Gas Processing Co. v. Hull, 886 P.2d 1181, 1188 (Wyo.1994) (quoting Gluckauf v. Pine Lake Beach Club, Inc., 78 N.J.Super. 8, 187 A.2d 357, 366 (1963)); see also Clark, 966 P.2d at 435.

Plaintiff's Exhibit 13 was a letter written by Dr. Jenkins to Dr. Tooke which explained the results of the MRI and CT scans and his diagnosis of Sharon's condition. The Bossards offered the letter as evidence, and Rudy objected to it, claiming it was hearsay. The Bossards argued that the letter was admissible under the exception to the hearsay rule set out in W.R.E. 803(4), and the trial court allowed the letter to be admitted into evidence.

W.R.E. 803(4) states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

...

(4) Statements for purposes of medical diagnosis or treatment. —Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Rudy argues that the hearsay exception set out in W.R.E. 803(4) applies to statements made by a patient and does not apply to statements made by one doctor to another. This Court has not previously addressed the scope of the hearsay exception set out in W.R.E. 803(4) or the specific question of whether or not the exception applies to statements made by doctors. We do not believe, however, that this is the proper case in which to delve into this complicated evidentiary issue because, even if we were to decide that the letter was not admissible under W.R.E. 803(4), we still would not reverse the judgment because the record clearly shows Rudy was not prejudiced by the admission of the letter. Dr. Tooke testified quite extensively, without objection, about the contents of the letter prior to it being offered for admission into evidence. The actual admission of the letter did nothing more than corroborate Dr. Tooke's testimony, and, consequently, it did not prejudice Rudy.

Plaintiff's Exhibit 14 was a diary Sharon kept during 1996 which described her symptoms. The Bossards asked the trial court to admit the diary into evidence. Rudy objected to admission of the diary, claiming it was inadmissible hearsay. Pursuant to the hearsay exception set out in W.R.E. 803(5), the trial court allowed Sharon to read from the diary during her testimony, and it also allowed the diary to be admitted into evidence.

W.R.E. 803(5) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

...

(5) Recorded recollection.—A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Under W.R.E. 803(5), a memorandum or record may be read into evidence by a witness as long as: the witness once had personal knowledge of the matter, the record or memorandum was prepared by the witness when it was fresh in her memory, the record or memorandum accurately reflected the witness' knowledge, and the witness did not have sufficient recollection at the time of the trial to enable her to testify fully and accurately. 31 Michael H. Graham, Federal Practice and Procedure: Evidence § 6756 (interim ed.1997).

Sharon testified that she kept the diary on nearly a daily basis during 1996 and, although she had general memories about her physical condition, she could not remember the specifics of her day-to-day symptoms without referring to the diary. We conclude that the Bossards established a sufficient foundation for the diary, and the trial court did not abuse its discretion by allowing Sharon to read entries from the diary to the jury.

The trial court also allowed the entire diary to be admitted into evidence. The Bossards concede on appeal that, under the plain language of W.R.E. 803(5), a recorded recollection may be read into evidence but the record itself cannot be admitted. W.R.E. 803(5); 31 Graham, supra. Accordingly, the trial court's decision to admit the diary into evidence pursuant to W.R.E. 803(5) was erroneous.

Nevertheless, we agree with the Bossards that the admission of the diary into evidence did not prejudice Rudy. Sharon read extensively from the diary during her direct testimony. We have compared her trial testimony with the entire diary and conclude that there was no material evidence included in the diary which was not related to the jury during Sharon's testimony. Furthermore, in light of Sharon's extensive testimony about the pain she experienced as a result of...