Van Brunt v. Stoddard

• Decision Date: 28 December 2001
• Docket Number: No. 26285.,26285.
• Citation: 39 P.3d 621,136 Idaho 681
• Parties: Michael VAN BRUNT, Sr., and Brett Van Brunt, Plaintiffs-Respondents-Cross Appellants, v. Dennis Garth STODDARD, Defendant-Appellant-Cross Respondent.
• Court: Idaho Supreme Court

39 P.3d 621

136 Idaho 681

Michael VAN BRUNT, Sr., and Brett Van Brunt, Plaintiffs-Respondents-Cross Appellants, v. Dennis Garth STODDARD, Defendant-Appellant-Cross Respondent.

No. 26285.

Supreme Court of Idaho, Pocatello, September 2001 Term.

December 28, 2001.

Douglas J. Balfour, Chtd., Pocatello, for appellant. Douglas J. Balfour argued.

Lowell N. Hawkes, Pocatello, argued for respondents.

WALTERS, Justice.

This is a personal injury action that raises issues relating to evidentiary issues and issues regarding the apportionment of negligence and the amount of the damage award. We affirm the judgment in part and vacate in part.

FACTS AND PROCEDURAL BACKGROUND

On May 23, 1996, Garth Stoddard was operating his vehicle on Poleline Road in Pocatello. Michael Van Brunt was driving his son's motorcycle, also on Poleline Road, in the outside right-hand lane as he approached the intersection with Cedar Street where Stoddard was stopped in the inside lane. Stoddard turned suddenly and abruptly into the right-hand lane and struck Van Brunt's motorcycle, which he claimed he only saw a moment before the impact. Stoddard turned his vehicle to the right when his passenger giving directions realized that they were at the location of his bank and told Stoddard he should turn into the bank's parking lot. Van Brunt was thrown off the motorcycle, struck his back and left flank into the right rear corner of a large Pontiac Bonneville that was parked perpendicular to the traffic, then fell to the ground.

Van Brunt brought suit to recover damages from injuries sustained in the accident. Stoddard challenged all but Van Brunt's ankle injury, which was sufficiently resolved by September of 1996 to allow Van Brunt to return to work. Stoddard disclaimed any liability for Van Brunt's other injuries that manifested themselves after the accident, including toe pain, Morton's neuroma, carpal tunnel syndrome, the later back and neck surgeries and complications from them. Stoddard contended that there was evidence in Van Brunt's medical history of preexisting conditions that the surgeries were related to degenerative disc disease and were not a result of the vehicle/motorcycle accident. Van Brunt's primary treating physicians, Doctor Selznick and Doctor Blair, testified at the trial regarding the care they had provided to Van Brunt, including the surgeries later performed in Seattle by a former mentor and colleague of Doctor Selznick to whom Van Brunt was referred. Testifying on behalf of the defense was Doctor Richard Knoebel, an orthopedist from Hailey, Idaho, who conducted an independent medical examination of Van Brunt. He concluded that the low back pain and the soft tissue flank pain were sufficiently resolved by September of 1996. In his opinion, Van Brunt's complaints of pain in March of 1997 and a fusion done in June 1997 were not secondary to the motor vehicle accident. In his testimony, Dr. Knoebel stated that Van Brunt's neck injury, the pain in his hands, or the back pain that required surgery were not connected in any way with the accident of May 23, 1996.

The case was tried from September 28, 1999, through October 1, 1999. The jury attributed ninety percent negligence to Stoddard and ten percent negligence to Van Brunt and returned a verdict in favor of Van Brunt for $655,500.00. The verdict included an amount representing the property damage to the motorcycle belonging to Brett Van Brunt. The judgment was entered on October 4, 1999, and post-trial motions were argued to the district court. The district court entered an amended judgment reducing the amount of the judgment to $604,682.65, which included interest and an attorney's fee award. Stoddard appealed, asserting principally that he had been denied a fair trial. Van Brunt filed a cross appeal, contesting the ten percent negligence attributed to him by the jury.

DISCUSSION

I. ADMISSION OF EVIDENCE

Stoddard raises several claims of error regarding the district court's admission or exclusion of evidence. He argues that the district court allowed improper impeachment and rebuttal in the testimony of the plaintiff's expert, Doctor Selznick. He submits that the district court should have ruled inadmissible Doctor Selznick's opinions challenging the defense expert's qualifications on the basis that no foundation for Doctor Selznick's testimony had been established and that the opinions were not true rebuttal.

Impeaching evidence is that which is directed to the credibility of a witness. The credibility of a witness may be attacked by any party including the party calling the witness. I.R.E. 607. A witness may not be impeached before he has testified. Boeck v. Boeck, 29 Idaho 639, 161 P. 576 (1916). In this case, Doctor Selznick testified during the plaintiff's case in chief that he ran a very busy clinical practice, unlike Doctor Knoebel who, according to Doctor Selznick, does not take care of patients. Doctor Selznick testified that he did not agree with the way Doctor Knoebel forced Van Brunt to raise his arms above his head during the independent medical examination, which was videotaped for viewing by the plaintiff; and he commented that treatment by Doctor Knoebel "would have killed [Van Brunt]." A little later in his testimony, Doctor Selznick reiterated his opinion that Doctor Knoebel is not a treating physician and that he does strictly insurance exams and testifies for the defense in court. Stoddard objected to Selznick's "gratuitous" statements and moved to strike. It appears that the objection essentially questioned whether this testimony was proper impeachment evidence because Doctor Knoebel had not yet testified in the trial. The district court admonished plaintiff's counsel to refrain from presenting impeachment evidence until his opportunity arose to offer rebuttal evidence after Doctor Knoebel had testified. There does not appear to have been a contemporaneous ruling by the district court on the defense's request to strike Doctor Selznick's statements.

Although the defense objection to lack of foundation for impeachment evidence could have been more clearly sustained, we conclude that the trial court determined that Doctor Selznick's testimony was not offered as proof of Doctor Knoebel's character but to provide medical expert testimony regarding Van Brunt's injuries from the accident.

Rebuttal evidence is evidence that explains, repels, counteracts or disproves evidence which has been introduced by or on behalf of the adverse party. State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982). The standard of review of a trial court's decision regarding the admission of evidence in rebuttal is one of deference to the trial court. See State v. Lewis, 126 Idaho 77, 878 P.2d 776 (1994); State v. Smith, 117 Idaho 225, 786 P.2d 1127 (1990); State v. Hewitt, 73 Idaho 452, 254 P.2d 677 (1953). Decisions regarding the admission of evidence are reversed only upon a showing of an abuse of discretion. State v. Lewis, supra.

After Doctor Knoebel testified, the plaintiff recalled Doctor Selznick as a rebuttal witness. In his testimony, Doctor Selznick stated that in his past seven years of practice, a number of his patients had also been seen by Doctor Knoebel. Comparing reports and second opinions he had seen from fellow orthopedic physicians in the area, Doctor Selznick stated that Doctor Knoebel had never provided him a confirmatory response and had disagreed with him on the cases 100% of the time. The rebuttal testimony sought to explain the obvious discrepancy in the doctors' opinions as to the relationship of the accident to Van Brunt's injuries that manifested themselves for months after the accident and necessitated complex and serious surgeries. We find no abuse of the district court's discretion in admitting Doctor Selznick's testimony that the defense claimed was improper rebuttal.

Stoddard argues that the summaries of medical bills and medical records identified as Plaintiff's Exhibits A and B were admitted without foundation showing that the treatment was reasonably related to the accident and that the amounts of the bills were reasonable for the services provided. For the first time on appeal, Stoddard argues that the invoices from the medical care providers are inadmissible hearsay. Because an objection that is not raised before a lower court will not ordinarily be considered on appeal, we do not address the hearsay objection. See Idaho State Ins. Fund By and Through Forney v. Turner, 130 Idaho 190, 938 P.2d 1228 (1997); Hoppe v. McDonald, 103 Idaho 33, 644 P.2d 355 (1982).

I.R.E. 1006 provides for the admission of a summary, if the originals are made available for examination. As part of the rule, the underlying documents upon which the summary relies must be shown to have been admissible. State v. Barlow, 113 Idaho 573, 746 P.2d 1032 (Ct.App.1987). Ordinarily, testimony by the patient or by the physician or the health care provider on the amounts charged or paid for medical services is sufficient evidence of the reasonable value of the services in the absence of some showing to the contrary. Farmer v. Internationat'l Harvester Co., 97 Idaho 742, 745, 553 P.2d 1306, 1309 (1976). Moreover, where the record reveals direct testimony that the injuries and resulting medical expense incurred after the accident were proximately caused by the injuries received in the accident, there is no error in the admission of the medical bill and treatment summaries. See id. We conclude that the district court properly admitted Van Brunt's testimony relating to the medical expense summary that he had prepared, and we uphold the district court's determination that there existed a sufficient factual basis to support the admission of these summaries.

II. MISTRIAL MOTION

Stoddard claims he was denied a fair trial because of repeated references to insurance made by plaintiff's testifying physician, in violation of an earlier in limine order issued by the district...