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Weber v. Rains

Supreme Court of South Dakota

September 4, 2019

GENE WEBER and CLARISSA WEBER, Plaintiffs and Appellees,
GERALD RAINS and K & L CONSTRUCTION, INC. d/b/a K & L LANDSCAPE & CONSTRUCTION, INC., Defendants and Appellants.



          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.

          ROSS M. WRIGHT DANA VAN BEEK PALMER of Lynn, Jackson, Shultz & Lebrun, P.C. Sioux Falls, South Dakota Attorneys for defendants and appellants.


         [¶1.] 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.


         [¶2.] 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.[1] 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.

         [¶3.] 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.

         [¶4.] 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.

         [¶5.] 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.

         [¶6.] 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 treatment.

         [¶7.] 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 treatment.

         [¶8.] 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, [2] future chiropractic expenses, pain and suffering, and the loss of consortium claim of Weber's wife, Clarissa.

         [¶9.] 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."

         [¶10.] 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.

         [¶11.] 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.

         [¶12.] 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.

         [¶13.] 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 disclosures.

         [¶14.] 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.

         [¶15.] 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 consortium claim.

         [¶16.] 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 ...

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