Schneider v. Chavez-Munoz

• Decision Date: 08 August 2000
• Docket Number: No. A-99-1028.,A-99-1028.
• Parties: Donna SCHNEIDER, appellant, v. Lauro CHAVEZ-MUNOZ, appellee.
• Court: Nebraska Court of Appeals

616 N.W.2d 46

9 Neb. App. 579

Donna SCHNEIDER, appellant, v. Lauro CHAVEZ-MUNOZ, appellee.

No. A-99-1028.

Court of Appeals of Nebraska.

August 8, 2000.

Michael W. Meister, of Meister & Segrist, Scottsbluff, for appellant.

Steven W. Olsen, of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellee.

IRWIN, Chief Judge, and SIEVERS and MOORE, Judges.

MOORE, Judge.

I. INTRODUCTION

This appeal arises from a suit filed in the district court for Scotts Bluff County, Nebraska, by the appellant, Donna Schneider, against the appellee, Lauro Chavez-Munoz (Chavez), for injuries from an accident occurring on June 19, 1994. Schneider claimed that she suffered a "closed head, mild traumatic brain injury and a cervical and lumbar strain" and that she incurred $7,691.58 in medical expenses. Chavez claimed that Schneider was contributorily negligent. Schneider filed a motion for summary judgment on the issue of liability, which was sustained by the district court. At the close of the jury trial, Schneider moved for a partial directed verdict, which was overruled by the court. The case was submitted to the jury, which returned a $0 verdict. Schneider filed a motion for new trial, which was overruled by the court. This appeal follows.

II. BACKGROUND

On June 19, 1994, Schneider was stopped in traffic at a flashing red light in Gering, Nebraska. Chavez' car collided with the rear of Schneider's car. Schneider alleged that she stopped her car just before the crosswalk and that the force of the collision propelled her vehicle into the intersection. Schneider indicated that she had her seatbelt on and that as a result of the collision, she lost two fingernails, which "were bleeding." She indicated that she did not know if any part of her body besides her hand struck anything, that she was not dizzy and did not believe she was unconscious after the accident, that she felt cold and was trembling but not nauseous, and that she did not have any eye problems after the accident.

Schneider recalled that a friend from church took her to sit in the passenger side of Schneider's car and asked her how she felt. She remembered telling him that she thought that she was "okay." She stated that she was shaken up, but that it would have been normal for her to think that she was "okay." In her deposition, Schneider stated that she did not recall any discussions with Chavez and his wife, but she did not think that she spoke with them. She subsequently stated that Chavez could have asked her how she was and that she probably told him that she was "okay" at the time. At trial, she testified that she did not remember talking to Chavez or his wife, but could not imagine not having spoken to them. She also remembered telling the investigating police officer that she thought she was fine and that she was just a little shaken up.

In her deposition, Schneider testified that she did not ask for medical treatment at the scene and did not recall whether any treatment was offered to her. She remembered that Chavez and his wife were taken from the scene of the accident by ambulance. Schneider stated that she was too shaken up to drive herself, so she was driven home by her sister. At home, she rested for the remainder of the day and recalled that she felt cold and was trembling.

Chavez testified that Schneider's car was not pushed into the intersection, that her car was stopped at the time of impact, and that he was traveling at less than 15 miles per hour at the time of the collision. He agreed with the police officer's rendition of where the vehicles ended after the collision, showing Schneider's vehicle a few feet over the crosswalk and Chavez' vehicle straight and touching bumpers with Schneider's vehicle. Chavez stated that he spoke to Schneider to ask her if she was "okay" and that she indicated that she was fine. He stated that Schneider was not bleeding and that the paramedics examined her.

Schneider allegedly suffered a "closed head, mild traumatic brain injury and a cervical and lumbar strain" from the accident. At the trial, Schneider testified that she currently had severe headaches two to three times per month and that she used to experience them one to two times per week following the accident. She testified that she could no longer help her husband in his construction business, mow the lawn, complete many household chores, lift her grandchild, dance, bowl, or engage in many activities that she used to participate in before the accident. She had difficulty in traveling due to her neck pain, although she had traveled to Dallas by plane and by car since the time of the accident. Schneider's husband, a siding and window contractor, testified at trial that he used to travel a lot when he worked, but now he stays closer to home so he can help Schneider around the home. Due to her alleged memory and cognitive problems, she cannot take telephone messages for her husband, no longer plays much bingo, and has difficulty remembering things such as numbers, money, events, names, and telephone numbers. The course of treatment for Schneider's alleged injuries has been as follows:

Within a few days of the accident, Schneider sought medical attention for pain in her neck and lower back and for headaches. Shortly after the accident, Schneider began seeing a chiropractor in Mitchell, Nebraska, Thomas Tomoi. The intake forms from Tomoi's office indicate that she had previously seen a chiropractor in Colorado, although in her deposition and at trial, she stated that she had never seen another chiropractor for treatment. The intake forms also indicate that she had pain in her neck and upper back, that she had been "Waking up w/Hot Flashes since Mon.," and that she was dizzy after the accident. The intake forms further indicate that she had never had the following symptoms: dizziness, fainting, forgetfulness, confusion, or depression. Also marked on the form is the fact that she had previously had headaches, although at trial, she indicated that these were not the same kind of debilitating headaches that she experienced after the accident.

Tomoi testified by deposition that his diagnosis was an "acute traumatic sprain/strain complex of the cervical thoracic spine, as well as the right glenohumeral articulation with accompanying headaches." Tomoi treated Schneider's neck for approximately 1 year until July 1995, testifying that in the first year of treatment, the frequency of treatment diminished and that Schneider made progress.

Tomoi did not see Schneider again until February 1999. He testified at the time of his deposition on August 9, 1999, that Schneider would always need chiropractic care to get relief from her chronic condition. Tomoi stated that Schneider's symptoms had improved since treatment resumed in February 1999 and that she had fewer headaches, had less pain in her shoulders, and was making slow favorable progress on her range of motion. He also indicated that in June 1994, Schneider's symptoms were "right sided," while in February 1999, they were "left sided," but was of the opinion that her symptoms were still causally related to the June 1994 accident.

Tomoi testified that Schneider never complained of memory or cognitive problems until after February 1999, over 4 years after the accident. In Schneider's deposition, she testified that she told Tomoi within 1 month of the accident. At trial, Schneider testified that she remembered telling Tomoi about her memory problem, but did not recall when she told Tomoi.

Schneider was involved in a second auto accident on December 24, 1994, in which her husband was driving and she was a passenger. She did not seek medical attention specifically for this accident as she was already in treatment with Tomoi at the time. Tomoi testified at trial that Schneider did not seem worse after this second accident.

Schneider went to see Dr. Robert Johnson at the Orthopaedic Center of the Rockies in Fort Collins, Colorado, for a second opinion regarding her neck pain. The billing statement from Robert Johnson's office indicates that Schneider saw him several times between July 1994 and March 1996. In Schneider's deposition, she testified that she complained to Robert Johnson of extreme headaches and right shoulder and neck pain. Schneider indicated that Robert Johnson took x rays, performed an MRI, and diagnosed a sprained neck. At trial, Schneider stated that the MRI taken by Robert Johnson apparently did not reveal any objective findings. Robert Johnson did not testify either in person or by deposition.

Schneider underwent a round of physical therapy with Scottsbluff Physical Therapy Associates in Scottsbluff, Nebraska, from July to November 1995 upon referral from Robert Johnson. She indicated that she exercised at home for about 5 to 6 months after completing this first round of physical therapy.

Schneider did not receive any treatment for her injuries from March 1996 to November 1998. Schneider states in her deposition that in the 2½-year break, she was still having pain, but was convinced that she was going to get better. Schneider next saw Dr. Brent Peterson, a neurosurgeon in Scottsbluff, for her neck pain on November 11, 1998, with a followup visit on December 9. Peterson testified that Schneider indicated to him that she had an exacerbation of her neck pain approximately 2 or 2½ years prior to the November 11 visit, although she did not give him any specifics as to what activity caused the exacerbation. In Schneider's deposition, she stated that she did not remember giving him this history.

Peterson performed a neurologic exam, focusing on Schneider's cervical spine and cervical muscles. He observed her display difficulty in turning her head during the exam, but during the history portion of the exam, he observed her able to move her neck in all directions with little discomfort. He concluded that her statements regarding the range of motion in her neck were not...