Vredeveld v. Clark

• Decision Date: 20 August 1993
• Docket Number: No. S-91-243,S-91-243
• Citation: 244 Neb. 46,504 N.W.2d 292
• Parties: Mia M. VREDEVELD, Appellant, v. Scott R. CLARK, Appellee.
• Court: Nebraska Supreme Court

Page 292

504 N.W.2d 292

244 Neb. 46

Mia M. VREDEVELD, Appellant, v. Scott R. CLARK, Appellee.

No. S-91-243.

Supreme Court of Nebraska.

Aug. 20, 1993.

Syllabus by the Court

1. Directed Verdict. A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law.

2. Directed Verdict. The party against whom a verdict is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the party against whom the judgment is made, the case may not be decided as a matter of law.

3. Negligence: Proximate Cause: Words and Phrases. "Proximate cause" is that cause which, in a natural and continuous sequence, unaccompanied by any efficient intervening cause, produces injury, and without which the result would not have occurred.

4. Trial: Expert Witnesses. Triers of fact are not required to take opinions of experts as binding upon them. Determining the weight that should be given expert testimony is uniquely the province of the fact finder.

5. Negligence: Motor Vehicles: Proximate Cause: Liability: Evidence: Damages. Evidence that a person was not wearing a seatbelt at the time he or she was injured shall not be admissible in regard to the issue of liability or proximate cause, but may be admissible as evidence concerning mitigation of damages, except that it shall not reduce recovery for damages by more than 5 percent.

6. Jury Instructions: Evidence: New Trial. Submission of an issue on which the evidence is insufficient to sustain an affirmative finding is, generally, prejudicial and results in a new trial.

7. Rules of Evidence. Admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence.

8. Physician and Patient: Claims: Records: Waiver. Filing a personal injury claim waives the physician-patient privilege as to all the information concerning the health and medical history relevant to the matters which plaintiff has put at issue.

9. Physician and Patient: Claims: Records. Medical records or information which is unrelated to the condition at issue and irrelevant to the cause of action remains privileged.

Kent A. Schroeder, of Ross, Schroeder & Brauer, Kearney, for appellant.

Daniel M. Placzek, of Luebs, Beltzer, Leininger, Smith & Busick, Grand Island, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ.

PER CURIAM.

This is an appeal by a plaintiff of a damages award in the district court for Hall County. Plaintiff, Mia M. Vredeveld, was a passenger in a car which was rear-ended by defendant, Scott R. Clark. The court granted plaintiff's motion for summary judgment as to liability and submitted to the jury the determination of damages proximately caused by defendant. The jury found for plaintiff in the amount of $5,000. Plaintiff appeals the damages awarded.

STATEMENT OF FACTS

On August 23, 1986, at approximately 11 p.m., plaintiff and a friend, Lana Leitschuck, after going to a movie, were driving home in plaintiff's Corvette. Leitschuck was driving and headed south on South Locust Street in Grand Island. As she arrived at Brookline Drive, she waited for the northbound traffic to clear so that she could make a left turn onto Brookline Drive. As she waited, another vehicle pulled up behind her. Shortly thereafter, defendant, also traveling southbound, approached in his vehicle and struck the vehicle immediately behind plaintiff's, pushing After the collision, plaintiff experienced stiffness in her neck and pain in the tops of her shoulders and the middle of her back. Plaintiff drove Leitschuck to plaintiff's house, and later, early Sunday morning, plaintiff went to the St. Francis Hospital emergency room. She was x-rayed and fitted with a cervical collar.

it into plaintiff's vehicle. Plaintiff, who was not wearing her seatbelt, testified that in response to Leitschuck's gasp immediately prior to the collision, she reached out to the dashboard with her right hand.

Plaintiff consulted her family physician, Dr. Sheridan Anderson, on August 26, because of persistent pain in her neck and across the top of her shoulders. Dr. Anderson diagnosed muscle strain and spasm in her neck. He prescribed pain medication and physical therapy. However, plaintiff began to experience pain in her right shoulder joint between August 27 and September 2. On September 2, plaintiff returned to Dr. Anderson's office, complaining of a resurgence of pain after attending a dance at her parents' home. At the recommendation of Dr. Anderson, plaintiff consulted Dr. Balachandran Wariyar, a neurologist, on October 1. In a letter to Dr. Anderson, Dr. Wariyar indicated that plaintiff had increasing problems with the right side of her shoulder and her neck "with the arm popping."

Dr. Wariyar found no nerve damage. On October 21, plaintiff drove to Iowa. Plaintiff testified that her right shoulder began to hurt as she drove to Iowa and that she was unable to complete the drive home. Plaintiff's neck pain began to subside by October 1986 and was resolved by March 13, 1987. Between October 28, 1986, and approximately November 27, 1989, plaintiff had consultations with, and treatments from, a number of specialists for her right shoulder pain. Dr. Matthew Reckmeyer, an orthopedic surgeon, treated plaintiff on several occasions beginning in October 1986. In a letter he prepared after plaintiff's visit, Dr. Reckmeyer stated that plaintiff had not recalled any specific trauma to her shoulder. His treatments included physical therapy and injections in the shoulder to relieve the pain. Dr. Reckmeyer was apparently the first to diagnose plaintiff's condition as shoulder impingement syndrome. Subsequent consultations with other doctors supported the diagnosis. In October 1987, a Dr. Miller, consulted for a second opinion, performed an arthrography. Dye was injected into the problem area to assist in the diagnosis. A myelogram and a CAT scan were also done.

Plaintiff eventually had two surgeries to relieve the shoulder impingement syndrome. On November 17, 1988, Dr. Reckmeyer performed an arthroscopic shoulder decompression, a procedure in which a tube is inserted through a puncture wound into various areas of the shoulder joint. This procedure alleviated the pain for a short time, but the pain in plaintiff's right shoulder resumed. On August 22, 1989, a Dr. Lesiak, an orthopedic surgeon who had previously seen plaintiff for the same condition, performed an open shoulder decompression. This surgery required a 3- to 4-inch incision in plaintiff's shoulder.

Plaintiff was involved in other motor vehicle accidents on June 26, 1987, and May 11 and 19, 1990. There is no indication that plaintiff suffered any injuries from the June 26 accident. Dr. Lesiak saw plaintiff on May 24, 1990, because of the May 11 accident. Dr. Lesiak found that plaintiff had a second degree acromioclavicular joint separation, a separation in her shoulder.

On April 16, 1990, plaintiff filed the present action against defendant, requesting special damages in the amount of $14,883.12 and general damages. The trial court granted summary judgment against defendant as to liability and submitted the issues of proximate cause of the injuries and the amount of damages that plaintiff suffered, if any, to the jury. At trial, plaintiff offered expert testimony from orthopedic surgeon Bruce Claussen. Dr. Claussen examined plaintiff in November 1990. In explaining the injury to her shoulder, plaintiff told Dr. Claussen she had placed her arm on the dashboard prior to impact. Dr. Claussen testified that plaintiff's history and physical findings were consistent with the diagnosis of continuing In this appeal, plaintiff claims the trial court erred in giving the jury instructions on intervening cause and failure to wear seatbelts for mitigation of damages; in failing to receive exhibits 25A, 25B, 25C, which were not listed in the pretrial order, and exhibit 63, an instructive video on arthroscopic surgery; in receiving into evidence exhibits 66 and 67, which were pictures of the vehicles involved in the accident; in failing to sustain plaintiff's motion in limine to exclude the pictures of the vehicles, motion for directed verdict against defendant as to proximate cause, motion for a new trial, motion for judgment notwithstanding the verdict, and motion for a protective order pursuant to Neb.Ct.R. of Discovery 26(b)(4)(C) (rev.1992); and in failing to tax costs.

impingement syndrome and that the accident of August 23, 1986, was the proximate cause of the shoulder injury at issue in the trial. He found that plaintiff had suffered in the past from a grade II shoulder separation, but it had healed by the time he saw plaintiff. Defendant presented the videotaped deposition of Dr. John G. Yost. Dr. Yost saw plaintiff on November 29, 1990. He stated that as of November 29, plaintiff showed no evidence of a grade II shoulder separation or of true impingement syndrome. Dr. Yost diagnosed plaintiff as suffering from frozen shoulder. On January 25, 1991, the jury found for plaintiff in the amount of $5,000.

DIRECTED VERDICT

After defendant rested, plaintiff moved for a directed verdict on the issue of proximate cause. If a motion for a directed verdict made at the close of all the evidence is overruled by the trial court, this court's review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law. Schleich v. Archbishop Bergan Mercy Hosp., 241 Neb. 765, 491 N.W.2d 307 (1...