Stormo v. Strong

• Citation: 469 N.W.2d 816
• Decision Date: 24 April 1991
• Docket Number: No. 17186,17186
• Parties: Gina K. STORMO, Plaintiff and Appellee, v. Scott W. STRONG, Dale A. Tesch, and Eunice M. Tesch, Defendants and Appellants.
• Court: Supreme Court of South Dakota

Page 816

469 N.W.2d 816

Gina K. STORMO, Plaintiff and Appellee, v. Scott W. STRONG, Dale A. Tesch, and Eunice M. Tesch,

Defendants and Appellants.

No. 17186.

Supreme Court of South Dakota.

Argued Feb. 11, 1991.

Decided April 24, 1991.

Nancy J. Turbak of Turbak Law Office, Watertown, for plaintiff and appellee.

Ronald J. Wheeler of Wheeler Law Office, Huron, for defendants and appellants.

HERTZ, Acting Justice.

Scott W. Strong (Strong), Dale A. Tesch and Eunice M. Tesch (Teschs) (collectively referred to as defendants) appeal from a jury verdict awarding Gina K. Stormo (Stormo) $360,000 in damages for injuries she sustained in an auto accident. We affirm.

FACTS

On June 30, 1986, Stormo was injured when the car in which she was traveling collided with a farm truck driven by Strong. At the time of the accident, Strong was acting within the scope of his employment with Teschs who owned the truck.

It is undisputed that Stormo's injuries were extensive, requiring thirteen days of hospitalization, including two days in intensive care. Her injuries included a crushed right arm, broken ribs, a punctured and collapsed right lung, a bruised left lung, a separation of both ends of her collar bone, an injured knee, and many bruises and abrasions. Stormo's shoulder blade was fractured, tendons in her neck were torn, her front teeth were knocked loose, and a bony wing on one of her vertebrae had been fractured. Because she was unable to care for herself when she was released from the hospital, family and friends provided home care for Stormo as she recuperated over the summer.

When Stormo returned to her treating physician, Dr. Jason Ostby, for a follow-up visit on July 16, 1986, he referred her to an orthopedic surgeon, Dr. Robert Suga. When Dr. Suga examined Stormo on July 31, 1986, he noted that due to the severity of the injury to her arm, it had healed at an angle, leaving her arm permanently bent. He also observed that her collarbone was permanently separated at both ends, increasing her risk of arthritis in the future, and contributing to a deformity of her shoulder. A deformity of the chest caused by Stormo's broken ribs made her right shoulder droop and caused asymmetry in her shoulders. Although Stormo initially regained full motion in her shoulder as a result of physical therapy, her condition deteriorated as scar tissue formed.

Six months after her accident, Stormo was examined by Dr. Ostby for a school physical. He observed that her arm was "noticeably deformed," and that she had a two-and-a-half inch scar above her right breast, and a scar on her back. Dr. Ostby also noted that Stormo's shoulder drooped and she complained of some pain.

On February 2, 1988, Stormo was examined by a second orthopedic surgeon, Dr. Dennis Johnson, on behalf of the insurance carrier for Strong and Teschs. Dr. Johnson observed the same injuries noted by Dr. Ostby and Dr. Suga, and concluded that Stormo had a twenty-six percent (26%) permanent partial physical impairment of the whole person. The parties were unable to reach a settlement, and this action was commenced on July 25, 1988. Prior to trial, Stormo indicated that she intended to call Dr. Johnson as a witness on her behalf. Defendants then sought an order permitting another adverse physical examination of Stormo by a doctor of their choice. The trial court denied this motion.

Also before trial, each party submitted a pretrial checklist, including a list of all witnesses to be called at trial. Stormo's list of witnesses included the following:

Tracy Stormo (Gina's sister);

. . . . .

One or more EMTs [Emergency Medical Technicians] from the Watertown Ambulance Service;

One or more of the nurses who attended Gina during her hospitalization at PLHC;

. . . . .

One or more additional siblings of Gina K. Stormo[.]

Later, after defendants obtained a continuance, they served Stormo with interrogatories requesting that each possible witness be specifically identified. Stormo did so, listing by name two EMTs and twenty-nine nurses, among other potential witnesses.

Trial began on April 23, 1990, and continued through April 27, 1990. Some of the experts testifying on behalf of Stormo included Dr. Suga, Dr. Johnson, Mr. Richard Ostrander, a rehabilitation consultant, and Ralph Brown, Ph.D., an economist. Dr. Brown testified concerning Stormo's reduced earning capacity. In his testimony, Dr. Brown relied on Mr. Ostrander's opinion regarding the average annual loss of employability suffered by Stormo as a result of her injuries. Defendants' objection to Brown's testimony, based on improper foundation, was overruled by the trial court.

Also introduced at trial was the deposition of Dr. Suga which had been videotaped. During his deposition, Dr. Suga referred to three x-rays. Although they were not marked or included as exhibits to the deposition, the video camera operator attempted to film the x-rays during the deposition. The certificate of the video tape operator stated in part:

I further certify that no changes, alterations or amendments have been made to the videotape, except that the three X-rays to which Dr. Suga referred in his deposition were videotaped again at the conclusion of Dr. Suga's testimony to obtain the most accurate depiction of those X-rays, and that taping of those X-rays was inserted at the appropriate place in the deposition to correspond to Dr. Suga's reference to each respective X-ray.

While in chambers, defendants objected by way of motion in limine to the admission of the video of Dr. Suga on the basis that it had been altered, but their motion was overruled. Defendants did not object when the video testimony was presented to the jury.

Testimony about Stormo's condition immediately following the accident was presented by a number of individuals, including Stormo's sister, Tracy (Stormo) West. Defendants objected to the testimony of Stormo's sister as cumulative, but this objection was overruled. Tracy then testified that when she arrived at the hospital she was just outside the emergency room when she "hear[d] Gina yelling in pain from whatever they were doing. I couldn't see inside or anything, but I could hear her yelling."

When Highway Patrolman Greg Ingemunson testified regarding his investigation, he referred to a diagram of the accident, an enlargement of his own sketch included in his accident investigation report. Immediately prior to Ingemunson's testimony, while in chambers, defendants objected to the use of the diagram and its reference to the stop sign that Strong had run. The court permitted the use of the diagram as demonstrative evidence used "for the purpose of showing how the collision happened to show the nature and extent of damages[.]" During Officer Ingemunson's testimony, he did not refer to the stop sign, the fact that Strong ran the stop sign, or the fact that Strong received a citation for the stop sign violation.

Dr. Dennis Johnson, the orthopedic surgeon who examined Stormo in 1988 on behalf of defendants' insurance carrier, testified by videotape deposition. Dr. Johnson testified about the severity of Stormo's injuries, and that "[i]t was [his] impression and [his] opinion that she had a 26 percent permanent partial physical impairment of the whole person." Immediately prior to presenting the videotape testimony of Dr. Johnson, defendants objected to the deposition, arguing that there was no foundation for Dr. Johnson's testimony regarding the impairment rating because the doctor failed to state that his opinion was based on reasonable medical certainty that the impairment was caused by the accident. This objection was overruled and the video was presented to the jury.

In submitting the case to the jury, the court included in its instructions a provision regarding the value of home care provided to Stormo by her family and friends. The jury was instructed to fix the amount of damages for any of the loss or harm proven to have been suffered by Stormo, including:

g. The reasonable value of necessary household services, nursing, and attendance that has been required as a result of the injuries. (In determining the value of services furnished by members of Gina's family or others, as unskilled nurses, the recovery is to be measured by what is customarily charged for similar work, according to your common knowledge.)

Defendants' objection to this instruction was overruled. Stormo's counsel also referred to the value of home health care services in her closing argument, estimating the value to be $3,500. After almost five hours of deliberation, the jury returned their verdict awarding Stormo damages of $360,000. Defendants then brought motions for a new trial and alternatively for remittitur, and sought to have the verdict set aside as excessive, being based on sympathy or prejudice. The court denied these motions, and judgment was entered for Stormo in the full amount awarded by the jury. This appeal followed.

ISSUES

1. Did the trial court abuse its discretion in admitting the testimony of economist Dr. Brown?

2. Did the trial court err in refusing to order a second physical examination by a physician of defendants' choice?

3. Did the trial court abuse its discretion in admitting the video deposition of Dr. Suga into which video of three x-rays had been inserted?

4. Did the trial court abuse its discretion in not requiring pretrial disclosure of all trial witnesses by name?

5. Did the trial court abuse its discretion in admitting testimony of the victim's sister because it was cumulative?

6. Did the trial court abuse its discretion in permitting the use of a demonstrative diagram indicating the presence of a stop sign at the accident scene, when liability was admitted?

7. Did the trial court abuse its discretion in admitting the testimony of Dr. Johnson because it lacked proper foundation?

8. Did the trial court improperly instruct the jury on damages for home health care?

9. Were the damages awarded...