CONSIDERED ON BRIEFS ON JANUARY 7, 2019
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON
COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. SMITH Judge
MICHAEL D. BORNITZ KIMBERLY R. WASSINK ROBERT D. TRZYNKA
SAMUEL A. KRYSTOSEK of Cutler Law Firm, LLP Sioux Falls,
South Dakota Attorneys for plaintiffs and appellees.
M. WRIGHT DANA VAN BEEK PALMER of Lynn, Jackson, Shultz &
Lebrun, P.C. Sioux Falls, South Dakota Attorneys for
defendants and appellants.
Gene Weber brought suit against Gerald Rains and K & L
Construction (the Appellants) for injuries sustained in a
motor vehicle accident. The jury returned a verdict in favor
of Weber and awarded damages. On appeal, the Appellants claim
the circuit court abused its discretion when it denied their
motion to exclude testimony from Weber's medical
providers regarding the extent and permanency of his
injuries. The Appellants also contend the jury's passion
or prejudice resulted in an excessive and unsustainable
verdict. We affirm.
Weber and Rains were involved in a motor vehicle accident on
January 9, 2014, on Highway 25 south of Emery. Highway 25 is
a two-lane blacktop road with no shoulder. Weber was
traveling southbound in his pickup truck, heading back to his
job site after stopping home in Emery for
lunch. Rains was northbound, driving a
semi-tractor with a side dump trailer. He was working within
the scope of his employment with Sioux City-based K & L
Construction, transporting gravel from a quarry to the site
of a bridge maintenance project.
Rains testified that he had a coughing fit just prior to the
collision, and an investigation revealed that his
tractor-trailer had drifted over the centerline. Both drivers
stated they took evasive action and were able to avoid a
head-on collision. However, Rains' rear axle struck
Weber's front driver's side, causing Weber's
pickup truck to spin into the oncoming traffic lane and land
in the opposite ditch.
Weber testified that after the accident he was dazed and may
have lost consciousness momentarily. After taking a few
moments to assess his condition, he got out of his pickup and
spoke with Rains and another K & L truck driver who
witnessed the accident. Weber stated that he was feeling
alright at the accident scene, but he started to experience
tightness in his shoulders later that evening.
The following morning, Weber saw his regular medical
provider, Joni Wagner (Wagner), a physician assistant, and
reported that he felt "beat up." Weber told Wagner
he had pain in his shoulders, upper and lower back, and a
headache. Wagner prescribed a regimen of physical therapy and
referred him to Dr. Matthew McKenzie, an orthopedic surgeon.
Weber testified that the physical therapy provided only
short-term relief. Dr. McKenzie obtained an MRI, which was
"essentially normal." He diagnosed Weber with
chronic myofascial pain and suggested chiropractic treatment.
Weber started chiropractic treatment with Dr. John Bosch in
the fall of 2014. Eventually, his low back and left shoulder
pain subsided, but he continued to experience right shoulder
pain and headaches. Dr. Bosch referred Weber to Dr. Jason
Hurd, another orthopedic surgeon, who diagnosed his condition
as "a myofascial whiplash injury" and suggested
nerve conduction studies. When the studies found normal nerve
activity, Dr. Hurd advised Weber to continue chiropractic
Weber also saw Dr. Christopher Janssen, a physiatrist, twice.
Dr. Janssen thought Weber was experiencing cervical facet
pain and offered Weber trigger-point injections and
radiofrequency ablation as treatment options. Weber declined,
opting for over-the-counter pain medication and chiropractic
Weber commenced this action against the Appellants, seeking
damages he alleged were caused by Rains' negligence.
Prior to trial, the Appellants admitted liability for the
collision and agreed to pay for Weber's past medical
expenses and property damage. Still unresolved were the
issues of Weber's past wage loss,  future
chiropractic expenses, pain and suffering, and the loss of
consortium claim of Weber's wife, Clarissa.
In his responses to the Appellants' discovery requests,
Weber initially objected to an interrogatory requesting
information about expert witnesses, citing attorney-client
privilege and work-product doctrine. However, Weber's
response also stated that "[w]ithout waiving this
objection, Plaintiff anticipates that his doctors would
testify as expert witnesses regarding his care and treatment,
his prognosis, and his past and future medical bills."
On October 30, 2017, pursuant to the court's scheduling
order, Weber identified Wagner and Drs. Bosch and Janssen as
expert witnesses. Weber's disclosures stated they would
testify that: (1) the accident caused Weber's injuries;
(2) Weber would require future medical care; and (3)
Weber's injuries are permanent. The Appellants'
deadline to disclose expert witnesses was November 30, 2017,
but they chose to not identify any experts. Weber
supplemented his discovery responses on January 5, 2018,
responding to the Appellants' request for expert witness
information by referring to his earlier expert disclosure.
On January 28, 2018, Weber saw Wagner again for the first
time in almost three years. The visit occurred just prior to
Wagner's trial deposition. Wagner's record of this
visit relates how Weber's pain affected his marital
relationship and his hobbies, and caused emotional stress
from lost wages and medical bills. At her trial deposition,
Wagner testified generally that chronic pain can cause
depression, anxiety, relationship problems, and other health
issues. Wagner also testified that Weber would "more
likely than not" continue to experience flare-ups of his
chronic pain symptoms. The Appellants contend that Wagner had
never mentioned any of these concerns in her records of
Weber's prior visits. They also claim that the treatment
records of Drs. Bosch and Janssen failed to mention that
Weber was permanently injured or could not enjoy his hobbies.
Prior to trial, the Appellants moved the circuit court in
limine for an order excluding: (1) argument, testimony,
or evidence portraying Dr. Bosch, Dr. Janssen, and Wagner as
expert witnesses; (2) portions of Wagner's deposition
testimony regarding missed work and loss of income, the need
to find different employment, and general questions regarding
chronic pain; and (3) evidence, testimony, and argument that
Weber will have future pain, suffering, and medical expenses.
The Appellants argued Weber's expert designations did not
comply with the rules of discovery, claiming his patient
treatment records did not support the opinions of his medical
providers. In the Appellants' initial view, Weber's
treating providers should have been considered lay witnesses
who were unable to provide opinions regarding the permanency
of Weber's injuries, his future pain and suffering, and
his future medical treatment.
On February 20, 2018-the first morning of the three-day
trial-the circuit court denied the Appellants' motions to
exclude testimony about Weber's future pain and
suffering, finding that the challenged testimony was within
the scope of Weber's treatment. The court determined that
Weber's medical providers could testify about their
perceptions of Weber's overall prognosis that they
acquired while treating him. In so doing, the court also
rejected the Appellants' argument that allowing Wagner to
testify generally about how chronic pain can affect a patient
would violate the rules of civil procedure governing expert
In addition to presenting Wagner's videotaped deposition
at trial, Weber also offered live testimony from Drs. Bosch
and Janssen. Dr. Bosch testified that Weber experienced
difficulty performing his work duties and enjoying his
hobbies due to his injuries. Dr. Bosch also testified that he
"picked up" on Weber's emotional issues from
his injuries, and opined that his pain would "forever be
an issue [due to] continuous re-injury, [were] chronic, [and]
there's not going to be a drastic change." Dr.
Janssen testified that Weber suffered a whiplash injury with
resulting cervical facet pain and cervical myofascial pain
that would likely be permanent. In Dr. Janssen's view,
Weber would never be pain free, and treatment goals were
focused on reducing his pain complaints. The Appellants did
not offer any expert medical evidence.
The jury awarded Weber $813, 480 for pain and suffering, loss
of enjoyment of life, mental anguish, and disability. It also
awarded Weber $31, 000 for future chiropractic care, $32, 540
for lost wages, and $20, 000 for Clarissa's loss of
The Appellants moved for a new trial, and the record relating
to the post-verdict litigation that followed provides some of
the most illuminating information relative to this appeal. As
their first basis for a new trial, the Appellants argued that
the court should not have allowed Wagner to testify about
collateral effects associated with chronic pain or allowed
Dr. Janssen to testify that Weber's pain was permanent.
For each witness, the Appellants asserted that the treatment
records failed to support the breadth of their opinions.
Weber's counsel countered, stating he did not actually
know what his medical providers would say in response to his
permanency-related questions because, unlike a retained
expert, he was unable to easily visit with them and determine
their testimony or the contents of any report. However,
Weber's counsel also indicated that he disclosed ...