Russell v. Anderson

• Decision Date: 15 July 2020
• Docket Number: No. 19-2612,19-2612
• Citation: 966 F.3d 711
• Parties: David T. RUSSELL, Plaintiff - Appellant v. Edward R. ANDERSON, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

966 F.3d 711

David T. RUSSELL, Plaintiff - Appellant

v.Edward R. ANDERSON, Defendant - Appellee

No. 19-2612

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2020

Filed: July 15, 2020

Rehearing Denied August 20, 2020

Michael P. Healy, HEALY LAW FIRM, Lee's Summit, MO, for Plaintiff - Appellant.

Tanya J. Hansen, Erin E. Schroeder, LEININGER & SMITH, Grand Island, NE, for Defendant - Appellee.

Before COLLOTON and BENTON, Circuit Judges, and WILLIAMS,¹District Judge.

BENTON, Circuit Judge.

David T. Russell sued Edward R. Anderson for negligently crossing the highway's center line and sideswiping Russell's motorcycle.A jury awarded Russell $7,000.The district court denied his motion for a new trial on damages.Russell v. Anderson , 2019 WL 3358702, at *3(D. Neb.July 25, 2019).He appeals.Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

This court views"the evidence in the light most favorable to the jury verdict, assuming as true all facts which the prevailing party's evidence tended to prove."Patterson v. City of Omaha , 779 F.3d 795, 801(8th Cir.2015)(upholding denial of new trial because jury's award of nominal damages was consistent with evidence viewed most favorably to the verdict)(cleaned up).

About 9:30 pm on August 9, 2013, Anderson's car crossed the center line and sideswiped Russell's motorcycle approaching from the opposite direction.Russell stayed on his motorcycle, stopping in a ditch on the side of the road.He testified he restarted the motorcycle, got it back into gear, drove out of the ditch, and stopped near the collision scene.He was not bleeding and at the time, he did not think anything was broken.He testified, "I actually kind of patted myself down and thought, ‘Well, I think I'm alright.’ "His right arm and neck were "really numb."According to Russell, Anderson said, "Glad you're okay."Russell replied, "I'm glad you're okay, too."

Russell's fellow motorcycle riders, Nick Hargis and Garret Sherman, rode ahead until they noticed he was no longer with them.Sherman testified they returned to find Russell standing on the side of the road acting "pretty hysterical,""throwing his arms up and down,""pacing around" waiting for police to arrive.

Sheriff David C. Weeks, Anderson's longtime friend, responded to the collision.He had known Anderson since he was a child and saw him once a week for coffee.Weeks testified he saw some scratches along the side of Russell's motorcycle, but recalled no other damage.He did not see any injuries on Russell, who "seemed normal."Weeks did not call an ambulance because Russell "said he ... was not injured enough for any treatment."Russell told him only, "I may have hurt my arm a little bit."Weeks testified that if Russell's injuries had impaired his driving ability, Weeks "wouldn't have let him drive."Nor would he have let Russell drive an inoperable motorcycle away from the scene.

According to Russell, himself a licensed emergency medical technician, they did not call an ambulance because "I didn't feel, at the time, that I needed one."He said, "I knew I was going to be sore.I didn't know I'd be that sore, but I thought I'd get better."

A few hours after the collision, preparing to leave the scene, Russell was unsure his motorcycle could be ridden.Sherman, a mechanic, after riding it about 200 feet, said, "No, it's fine.You'll be alright."They did not repair the motorcycle.Russell rode it about 50 miles to a hotel with Sherman and Hargis.Sherman did not recall Russell complaining of injuries that night.

According to Russell, the next morning he felt "pretty sore" and "stiff."He took painkillers and decided to ride the motorcycle home to Kansas City, a four-hour drive.He did not repair it beforehand, although it had a bent rotor.During the trip, Hargis and Sherman did not see Russell having "any problems operating his bike."Sherman did not recall him asking to take a break.

Two days after the collision, Russell claimed to be "a lot sorer."The next day he saw a chiropractor, and had an MRI six days after the collision.A few weeks later, he saw an orthopedic surgeon, who recommended physical therapy.He also saw several neurologists.He had neck surgery on his spinal cord on January 6, 2014, five months after the collision.He had right shoulder surgery in December 2014.Russell testified he still had symptoms from his neck injury, including pain, weakness in extremities, and "burning feet," and was still doing physical therapy.He estimated his past medical bills at over $227,000.He expected another neck surgery, which his expert estimated would cost $80,000 to $90,000.

Russell's expert, Dr. Truett L. Swaim, conducted an independent medical evaluation but did not treat him.Swaim explained that the neck MRI taken six days after the collision showed "a really bad disc herniation."Russell would have "potential long-term damage" in the form of "permanent nerve injury."Swaim believed the MRI "shows that it's within a reasonable degree of medical certainty he had a significant flexion injury to his neck at some point in time."His report also noted that a physician's assistant observed the "fresh" neck disc herniation in the MRI six days after the collision.

Anderson stipulated that Russell had a disc herniation in his neck "that necessitated surgery" but disagreed "about the cause of it."

Swaim testified that "where someone gets in an accident, you've got endomorphins that are released at the same time. ... like, your body's morphine."He explained that endomorphins could prevent someone from feeling pain until a day or two after being injured.Swaim testified that the "likelihood" of the collision causing Russell's "large" neck disc herniation was "extremely high" because the MRI was taken a few days afterward.The court commented to the jury that the question of causation was ultimately up to them.

According to Swaim, the injury to Russell's spinal cord in his neck would "definitely" cause his current symptoms, including "pain in the back, pain in the left side of the arm.""You might have weakness in your legs.Might have burning in your feet."He acknowledged that Russell was released from the hospital one day after neck surgery and required no pain medication "due to not having any pain."Swaim conceded that the surgeon had removed "degenerative disc material."His report noted that the MRI six days after the collision showed "degenerative disc disease" as well as the "disc bulging" and "disc protrusion."

Even after Russell's neck surgery, an MRI showed "persistent" damage that Swaim believed could cause his "ongoing discomfort" and "shocking sensation" in his legs and feet.He believed Russell would need another neck surgery.He acknowledged that a physical therapist noted in June 2014 that Russell had restored his range of neck motion to normal.

As for Russell's back, Swaim testified that an MRI showed a painful disc herniation caused by the collision.After a scheduled break, the court gave a "limiting instruction" that Swaim was not at the accident and the jury, not the doctor, must ultimately decide if the accident caused the injuries.

Swaim acknowledged that three of Russell's treating doctors characterized the back condition as a "small,""mild," and "normal" disc bulge, not a harmful disc herniation.A fourth doctor found "no obvious abnormality" in Russell's back to explain his reported symptoms.An MRI five months after the collision showed his back, including the spine and soft tissue, within normal limits.A CT scan seven months after the collision showed no compressions or problems with scoliosis.Swaim conceded that a disc problem shown in the CT scan "can happen as a normal process of aging."He acknowledged Russell had also complained of pain in other parts of his back unrelated to the collision.

As for Russell's right shoulder, Swaim testified that the collision caused the rotator cuff to become frayed, requiring the surgery in December 2014.Russell's doctor found the shoulder "normal" in an MRI two months after the collision.Yet another MRI showed no abnormalities six months after the collision.However, Swaim believed that another MRI showed an injury creating Russell's reported discomfort, the "popping," and difficulty using his right shoulder.

Swaim acknowledged that this shoulder injury could occur in people whose jobs required a lot of overhead lifting or rotating.He testified Russell "might have had some rotator cuff issue because he's a worker," but the collision "either caused or was a substantial contributing factor to cause" the injury.The court again commented to the jury that the question of causation was ultimately up to them.

Russell testified that his injuries from the collision forced him to change jobs because he could no longer do physical labor.Before, he owned a home renovation company where, he said, "I physically did all that work myself," including carrying concrete, framing walls, and setting toilets.He also worked as a construction superintendent, "very demanding,""almost all labor."He had to "stack all the lumber" and tidy up the job site.After the collision, he claimed he could no longer perform that work.

According to Russell, he sought construction work with fewer physical demands but could not keep a job due to the pain in his neck, back and shoulder.At four successive jobs, he was fired or left because he argued with his bosses.According to Russell, his last boss told him, "Even when you say something nice, you come off like you're a real jerk. ...Your face.It always looks angry."Russell testified he was "grumpy all the time and argumentative" because pain prevented him from sleeping or being comfortable at work.He could not cope with the pain at work because he"was putting in just crazy hours" and "working seven days a week."He could not do any physical labor, and desk work required him to sit in a chair for too long, causing neck discomfort.

...