Seeber v. Howlette
| Decision Date | 20 November 1998 |
| Docket Number | No. S-97-342,S-97-342 |
| Citation | 255 Neb. 561,586 N.W.2d 445 |
| Parties | Jack L. SEEBER, Sr., and Susan Seeber, Appellants, v. Susan HOWLETTE, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is a factor only when the rules make such discretion a factor in determining admissibility.
2. Trial: Evidence: Appeal and Error. Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under Neb.Rev.Stat. §§ 27-401 and 27-403 (Reissue 1995), the trial court's decision will not be reversed absent an abuse of discretion.
3. Damages: Appeal and Error. The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and 4. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.
bears a reasonable relationship to the elements of the damages proved.
5. Trial: Records: Testimony: Videotapes. In order to make a proper record of testimony presented to a jury by videotape deposition, both the videotape and the verbatim transcript of the deposition should be marked as exhibits and offered and received for purposes of the record only.
6. Expert Witnesses. Admissibility of expert testimony is based on four factors: (1) whether the witness is qualified as an expert; (2) whether the testimony is relevant; (3) whether the testimony will assist the trier of fact; and (4) whether the probative value of the testimony, even if relevant, is outweighed by the danger of unfair prejudice or other considerations.
7. Rules of Evidence: Words and Phrases. For purposes of applying Neb.Rev.Stat. § 27-403 (Reissue 1995), probative value is a relative concept which involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues of the case. Unfair prejudice means an undue tendency to suggest a decision on an improper basis.
8. Expert Witnesses. As a general rule, a party is not precluded from calling as its own witness an expert who has been retained and identified by the opposing party.
9. Damages: Evidence. In awarding damages, the fact finder is not required to accept a party's evidence at face value, even though that evidence is not contradicted by evidence adduced by the party against whom the judgment is to be entered.
Gregory C. Scaglione and Amy B. Blumenthal, of Koley, Jessen, Daubman & Rupiper, P.C., Omaha, for appellants.
Lawrence E. Welch, Jr., of Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.
WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.
This is a personal injury action arising from a collision between motor vehicles operated by Jack L. Seeber, Sr. (Jack Seeber), and Susan Howlette (formerly Susan Howlette-Martinez). Alleging that Howlette's negligence was the cause of the accident, Jack Seeber claims damages for injuries to his neck, shoulder, and back; Susan Seeber, his wife, asserts a claim for loss of consortium. Following Howlette's admission of liability, a jury returned a verdict in the amount of $5,000 for Jack Seeber and $0 for Susan Seeber, from which the Seebers appeal. We conclude that the Seebers' assignments of error are without merit and affirm the judgment of the district court.
On March 31, 1993, a vehicle operated by Jack Seeber was struck from the rear by a vehicle driven by Howlette. On October 26, 1994, prior to filing this action, Jack Seeber was examined by Dr. Bernard Kratochvil, an orthopedic surgeon, at the suggestion of his attorney. Based upon his examination, Kratochvil concluded that Jack Seeber had sustained an injury to the soft tissue of his neck and back which did not result in permanent disability. After consulting other physicians, the Seebers filed this action.
After suit was filed, Howlette's counsel contacted Kratochvil to request that he perform an independent medical examination of Jack Seeber and in the process learned of Kratochvil's prior examination. Howlette's counsel then attempted to obtain the records through issuance of a subpoena and notice to depose the custodian of Kratochvil's medical records. The Seebers filed a motion to quash, asserting that Kratochvil was an expert whom they retained in anticipation of litigation but did not intend to call as a Anticipating that Howlette would call Kratochvil as a trial witness, the Seebers filed a motion in limine to exclude his testimony on grounds that he was a "paid consultant" retained by them and that his testimony was inadmissable under Neb.Rev.Stat. §§ 27-401 and 27-403 (Reissue 1995). The Seebers moved in the alternative that if Kratochvil were permitted to testify, he should be restricted from identifying the party by whom he had originally been retained. The district court ruled that Kratochvil would be permitted to testify at trial, but that he would not be permitted to identify the party who first retained him because this information was irrelevant.
witness at trial and that his records were therefore not discoverable under Neb. Ct. R. of Discovery 26(b)(4)(B) (rev.1996). The district court sustained the motion and ordered that medical records pertaining to Jack Seeber which Kratochvil's office had produced in response to a subpoena duces tecum prior to the hearing on the Seebers' motion to quash should be returned to the Seebers' attorney and that Howlette's counsel should not retain copies.
It was stipulated that Kratochvil's testimony could be presented by videotape deposition taken prior to trial. During his deposition, Kratochvil testified on direct examination regarding the findings he made during his independent medical examination of Jack Seeber and the medical opinions which he reached on the basis of those findings. During cross-examination by the Seebers' counsel, Kratochvil testified generally that he performed independent medical examinations at the request of attorneys for plaintiffs and defendants, as well as various governmental agencies, but conceded that "it's probably weighted in favor of the defendants." Kratochvil stated that his opinions were not influenced by the party retaining his services and that he always attempted to "give an honest answer."
The Seebers' counsel also cross-examined Kratochvil regarding his relationship with the law firm which represented Howlette. Kratochvil testified that his deposition fee of $800 would be paid by that firm, assuming that it had requested the deposition. He was asked about the frequency with which he performed independent medical examinations at the request of the law firm and replied, "[W]e probably do quite a few for them." He was then asked whether an independent medical examination was one "issued for a particular party in this case."
On redirect examination, Kratochvil testified that he had not been initially retained to examine Jack Seeber by Howlette's counsel, but, rather, by the Seebers' attorney. The Seebers' counsel made a timely relevancy objection and motion to strike this testimony, which the district court overruled based upon its finding that the Seebers' cross-examination raised the issue of initial retention. Counsel for the Seebers preserved his objection and motion to strike before the deposition was presented to the jury. Following entry of judgment on the verdict, the district court overruled the Seebers' motion for new trial, and they perfected this appeal. We granted their petition to bypass.
Restated, the Seebers contend that the district court erred in (1) permitting Howlette to call Kratochvil as a witness, (2) permitting Kratochvil to testify on redirect examination that he was originally retained by the Seebers' attorney, and (3) denying their motion for new trial. They also contend that the verdict rendered was clearly erroneous and insufficient to compensate them for their damages.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is a factor only when the rules make such discretion a factor in determining admissibility. Smith v. Papio-Missouri River NRD, 254 Neb. 405, 576 N.W.2d 797 (1998). Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under §§ 27-401 and 27-403, the trial court's decision will not be reversed absent an abuse of discretion. See, State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998); State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).
The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved. Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996); ConAgra, Inc. v. Bartlett Partnership, 248 Neb. 933, 540 N.W.2d 333 (1995); Records v. Christensen, 246 Neb. 912, 524 N.W.2d 757 (1994).
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Hartwig v. Oregon Trail Eye Clinic, 254 Neb. 777, 580 N.W.2d 86 (1998); Barnett v. Peters, 254 Neb. 74, 574 N.W.2d 487 (1998).
Before addressing the Seebers' assignments of error with respect to Kratochvil's testimony, we note an irregularity in the manner in which the record of that testimony was preserved. The videotape containing the deposition testimony was marked as an exhibit at trial...
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