Vahai v. Gertsch

• Decision Date: 15 January 2020
• Docket Number: S-19-0008
• Citation: 455 P.3d 1218
• Parties: Aubri VAHAI, Appellant (Plaintiff), v. Ryan GERTSCH, Appellee (Defendant).
• Court: Wyoming Supreme Court

455 P.3d 1218

Aubri VAHAI, Appellant (Plaintiff),

v.Ryan GERTSCH, Appellee (Defendant).

S-19-0008

Supreme Court of Wyoming.

January 15, 2020

Representing Appellant: Richard Gage, Richard Gage, P.C., Cheyenne, Wyoming.

Representing Appellee: Curtis B. Buchhammer, Buchhammer & Ward, P.C., Cheyenne, Wyoming.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ, Justice.

[¶1] Ms. Aubri Vahai was rear-ended twice in the span of fifteen months, first by Mr. Ryan Gertsch and then by Mr. James Frew.¹ Ms. Vahai sued Mr. Gertsch and Mr. Frew, claiming their negligence caused permanent injuries to her cervical and lumbar spine (neck and lower back) which will require future surgery. Eventually the case went to a jury trial. Mr. Gertsch and Mr. Frew admitted negligence. The only issues for the jury were whether negligence caused damage to Ms. Vahai and, if so, the amount. The jury awarded Ms. Vahai a total of $10,000 in damages and found Mr. Gertsch and Mr. Frew to be 75% and 25% responsible, respectively. The district court entered judgment accordingly. Ms. Vahai appeals from the judgment, but her appeal pertains only to Mr. Gertsch because she settled with Mr. Frew after the jury’s verdict.

[¶2] Ms. Vahai contends the district court erred in allowing Mr. Gertsch’s Wyoming Rule of Civil Procedure 35 examiner to testify at trial as an expert because Mr. Gertsch did not comply with the disclosure requirements of Wyoming Rule of Civil Procedure 26(a)(2)(B). We agree, but conclude the admission of the examiner’s testimony was harmless. Ms. Vahai also maintains Mr. Gertsch’s closing argument was improper. She did not object to the closing argument and it was not plainly erroneous. Finally, she asserts the district court erred in requiring her to disclose her substance abuse treatment records and in allowing their admission at trial because they were privileged, not relevant and unduly prejudicial. The district court did not err with respect to her treatment records. We affirm.

ISSUES

[¶3] Ms. Vahai raises five issues which we distill to three:

1. Did the district court err in allowing Mr. Gertsch’s Rule 35 examiner to testify as an expert at trial despite Mr. Gertsch’s failure to comply with Rule 26(a)(2)(B) ?

2. Did Mr. Gertsch plainly err by personally attacking Ms. Vahai, her counsel, her mother, and one of her experts during closing argument?

3. Did the district court err in requiring Ms. Vahai to disclose her substance abuse treatment records and in allowing them to be admitted at trial?

FACTS

[¶4] We provide a brief summary of the facts here. Other relevant facts will be set forth in the discussion of the issues.

The November 2011 Accident

[¶5] On November 29, 2011, Ms. Vahai, then 20 years old, was driving a 1992 Ford Escort west on Lincolnway in Cheyenne, Wyoming. She stopped to make a left-hand turn. While she was waiting for oncoming traffic to clear, Mr. Gertsch, driving a 2005 Dodge Ram pick-up truck with an attached empty trailer, hit the back of her vehicle, pushing it forward about six feet. Ms. Vahai declined to go to the hospital immediately after the accident but did report to the ER later that evening. CT scans of her head and neck were normal. She was diagnosed with whiplash and a myofascial cervical strain, given pain medication and a muscle relaxer, and told to follow up with her private physician within 2-3 days. She did not follow-up and, in fact, did not seek further treatment until three months later. In the meantime, she graduated from beauty school and began working as a cosmetologist at Great Clips.

[¶6] In March 2012, Ms. Vahai saw Dr. Vincent Ross, a physician at Smart Sports, who diagnosed her with cervical, thoracic and lumbar sprains and muscle spasms. He prescribed 8-16 sessions of physical therapy, but Ms. Vahai completed only four. During two of those sessions, she reported no pain prior to or after treatment. On May 2, 2012, she was discharged from physical therapy because she had met her goals; those goals included eliminating her pain.

[¶7] About a month and a half later, on June 21, 2012, she began treatment with Dr. Michael Thompson, a chiropractor. He took an X-ray of her cervical spine and diagnosed her with kyphosis (a reversal of the natural C-shaped curve of the cervical spine),² a cervical strain /sprain, and dysfunction of the cervical and thoracic spine (neck and mid-back). Over the course of twenty-four visits, he performed various adjustments to her neck and mid-back, which improved her pain symptoms. Dr. Thompson planned to take additional X-rays and perform further treatment, but Ms. Vahai did not return to his office after August 31, 2012.

[¶8] On September 13, 2012, Ms. Vahai saw Dr. Judson Cook, a neurosurgeon, who diagnosed her with a cervical sprain. Dr. Cook informed her she had reached maximum medical improvement but told her to return to his office if her symptoms worsened or persisted. Ms. Vahai did not return.

The March 2013 Accident

[¶9] On March 1, 2013, Ms. Vahai was driving a 2011 Suzuki Grand Vitara on Dell Range Boulevard in Cheyenne. Mr. Frew was driving a 1999 Ford Ranger pick-up truck directly behind her. Ms. Vahai stopped when traffic in front of her stopped. Mr. Frew did not stop and rear-ended Ms. Vahai’s vehicle. The collision caused Ms. Vahai’s vehicle to hit the pick-up truck stopped in front of her. Ms. Vahai reported to the ER after the accident. CT scans of her cervical and lumbar spine were normal. She was diagnosed with whiplash. By the time of the second accident, Ms. Vahai had left Great Clips and was working 30-35 hours per week as a cosmetologist at Super Cuts. About two weeks after the second accident, she reduced her hours to 20-25 hours per week.

[¶10] From March 29 to May 22, 2013, Ms. Vahai received chiropractic treatment from Dr. Ryan Walton. She did not receive further treatment for her neck or back until October 21, 2014 (seventeen months later), when she saw a physical therapist in Fort Collins, Colorado.

[¶11] On December 9, 2014, Ms. Vahai saw Dr. Timothy Wirt, a neurosurgeon, who ordered an MRI of her cervical spine. The radiologist reviewing the MRI reported minimal disk bulges at C-4/C-5 and C-5/C-6. Dr. Wirt disagreed; he interpreted the MRI as revealing her to have drier than normal discs in her neck, a congenital condition which was not a source of pain and did not require surgery. Ten days later, Ms. Vahai began seeing neurosurgeons Dr. Fernando Techy and Dr. Kenneth Pettine. Dr. Techy ordered an MRI of Ms. Vahai’s lumbar spine, which revealed a 4.5 mm central disc protrusion at the L-5/S-1 joint. Over the course of the next year, Dr. Techy or Dr. Pettine ordered that Ms. Vahai receive injections in her neck and lower back. The injections provided temporary relief.

[¶12] In July 2016, Ms. Vahai returned to Dr. Ross at Smart Sports, who again referred her to physical therapy. She was prescribed 8-12 sessions, but completed only four. In November 2016, Dr. Ross referred Ms. Vahai to Dr. Steven Beer, a neurosurgeon, who examined her on January 9, 2017. Dr. Beer ordered new MRIs of her cervical and lumbar spine. He interpreted the MRIs to show kyphosis, disc herniation at C-4 through C-7, and a 4.5 mm disc herniation with an annular tear (a tear in the disc) at L-5/S-1. He ordered injections to the affected areas. The injections provided Ms. Vahai pain relief, which confirmed Dr. Beer’s diagnosis.

[¶13] At her last appointment on August 14, 2017, Dr. Beer informed Ms. Vahai of her treatment options—have surgery to fuse the afflicted joints in her cervical and lumbar spine or undergo a procedure called facet rhizotomy to temporarily numb the pain but which is effective only half of the time. Ms. Vahai indicated she wanted to delay having surgery until after the trial in this matter (which was then scheduled for the following week) but did want to proceed with the facet rhizotomy procedure. Several weeks later, the trial was continued to the end of February 2018. Ms. Vahai had not had surgery or the facet rhizotomy procedure by the time of trial.

The Lawsuit and Trial

[¶14] Ms. Vahai filed a complaint against Mr. Gertsch and Mr. Frew claiming she sustained permanent injuries to her neck and back as a result of their negligence. She sought damages for bodily injury, pain and suffering, loss of enjoyment of life,³ loss of earnings and earning capacity, and future medical care. She did not seek property damages or past medical expenses.

[¶15] At trial, Ms. Vahai presented evidence she did not suffer from neck or back pain prior to the November 2011 accident and her pain was exacerbated after the March 2013 accident. Dr. Thompson testified Ms. Vahai’s kyphosis was indicative of her having experienced a severe trauma like whiplash. Dr. Beer testified to his interpretation of Ms. Vahai’s injuries and opined she required two surgeries, one to fuse the afflicted joints in her neck (C-4 through C-7) and another to fuse the afflicted joint in her lower back (L-5/S-1). He also testified her injuries were caused by the accidents but could not opine as to which injuries were caused by which accident, other than that he believed the first accident to be more responsible for her injuries than the second. Ms. Vahai testified that due to her young age, she had decided to wait 15 years to have the surgeries, which Dr. Beer opined was appropriate. Ms. Sherry Young, Ms. Vahai’s functional capacity expert, testified Ms. Vahai’s injuries limited her to full-time sedentary work. Because cosmetology was classified as light-duty work, Ms. Young opined Ms. Vahai could only work part-time as a cosmetologist and it was appropriate for her to have reduced her hours after the second accident.

[¶16] Ms. Liz Kattman, a rehabilitation counselor, testified to the life care plan she created for Ms. Vahai based on the opinions of Dr. Beer and Ms. Young. The plan included the costs of two spinal fusion surgeries, presurgical care including office visits, spinal...