Avery v. Ward

Richard AVERY and Carroll Truck Lines v.
Willie WARD, Jr.

95-880                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 16, 1996


1.   Trial -- directed verdict -- when proper -- substantial
     evidence defined. -- A directed verdict for a defendant is
     proper only when there is no substantial evidence from which
     the jurors as reasonable individuals could find for the
     plaintiff; substantial evidence is that which is of sufficient
     force and character that it will compel a conclusion one way
     or the other; evidence introduced by the plaintiff, together
     with all reasonable inferences therefrom, is examined in the
     light most favorable to the plaintiff when the defendant makes
     a directed-verdict motion.

2.   Trial -- directed verdict -- trial court appropriately denied
     directed-verdict motion. -- The supreme court will not sustain
     a verdict that is based on speculation and conjecture; here,
     however, where there was sufficient proof that appellant was
     not keeping a proper lookout and was consequently negligent,
     that was not the case; the trial court appropriately denied
     the directed-verdict motion and allowed the matter to go to
     the jury for determination.

3.   Damages -- medical expenses -- party seeking has burden of
     proving reasonableness and necessity. -- A party seeking
     medical damages has the burden of proving the reasonableness
     and necessity for that party's medical expenses.

4.   Torts -- eggshell plaintiff -- appellee qualified. -- The
     supreme court concluded that the fact that appellee was a
     diabetic, suffered from hypertension, had a history of back
     problems, and had a prior ulcer on his ankle that recurred
     from time to time did not rid appellants of liability; it
     simply meant that appellee qualified as an "eggshell
     plaintiff," that is, one who was susceptible to enhanced
     injury by virtue of an existing condition.

5.   Negligence -- causation -- fact question for jury to decide --
     no reversible error. -- Matters of causation are questions of
     fact for the jury to decide; the same holds true for matters
     of credibility; the supreme court concluded that an adequate
     foundation was laid for the treatment of appellee's back,
     neck, and leg conditions and that ultimately the question of
     causation was one for the jury; the court held that there was
     no reversible error committed on this point.

6.   Evidence -- insufficient proof that hernia operation was
     normal consequence of original impairment. -- A negligent
     actor is only responsible for additional bodily harm resulting
     from the normal efforts of those providing medical treatment
     as reasonably required for the original bodily injury; the
     supreme court concluded that there was insufficient proof that
     appellee's hernia operation was in any wise a normal
     consequence of the original impairment; a proper foundation
     was not laid for the consideration of those expenses.

7.   Evidence -- hospital bill including unrelated expenses was
     erroneously admitted. -- Where there was no medical testimony
     as to why appellee was admitted to the hospital in the first
     place and no medical evidence as to how much of his stay was
     attributed to the injuries from his accident and how much was
     for a hernia and other unrelated tests and treatment, the
     supreme court concluded that, to the extent that the hospital
     bill may have included these unrelated expenses, it was
     erroneously admitted. 

8.   Torts -- personal-injury case -- plaintiff's burden to
     establish causal nexus between his injuries and defendant's
     negligence. -- A plaintiff may prevail in a personal-injury
     case upon proof that he sustained damages, that the defendant
     was negligent, and that the negligence was the cause of his
     damages; the law imposes on the plaintiff the burden of
     establishing a causal nexus between his injuries and the
     defendant's negligence; reversible error occurs when a jury is
     permitted to award damages on the basis of injuries that are
     not caused by the defendant.

9.   New trial -- when new trial cannot be avoided by entry of
     remittitur. -- Ordinarily, a general verdict is viewed as a
     complete entity that cannot be divided, requiring a new trial
     upon reversible error; however, a new trial can sometimes be
     avoided by the entry of a remittitur if the error relates to
     a separable item of damages; such a remittitur is fixed by the
     highest estimate of the element of damage affected by the
     error; but if the appellate court is at a complete loss to say
     what damages the jury would have allowed had the improper
     evidence not been considered, and if it cannot with confidence
     arrive at any maximum figure that the jury would surely have
     allowed absent the error, a new trial cannot be avoided by the
     entry of remittitur; if it is necessary to speculate in order
     to fix a remittitur, the appellate court reverses and remands
     the case for a new trial.

10.  New trial -- case reversed and remanded for new trial. --
     Where appellee failed to meet his burden to show that the
     expenses he incurred for the various treatments he received
     during his sixteen-day hospital stay were reasonably and
     causally related to his accident, the supreme court concluded
     that the trial court erred in admitting his medical bills into
     evidence, noting that it was unnecessary to address
     appellants' remaining arguments relating to the jury's
     assessment of damages and the trial court's refusal to allow
     a peremptory challenge, as those issues were unlikely to arise
     again on retrial; the case was reversed and remanded for a new
     trial.


     Appeal from Phillips Circuit Court; Olly Neal, Judge; reversed
and remanded.
     Huckabay, Munson, Rowlett & Tilley, P.A., by: Julia L.
Busfield, for appellants.
     J.L. Wilson & Associates, for appellee.
     
     Bradley D. Jesson, Chief Justice. 
     The appellants, Richard Avery and Carroll Truck Lines, appeal
from a judgment against them in the amount of $100,000.  They
advance four bases for reversal: (1) the trial court erred in
denying their motion for directed verdict because there was no
substantial evidence to support the verdict; (2) the trial court
erred in admitting testimony and medical bills of appellee Willie
Ward, Jr., without a proper foundation; (3) the trial court erred
in denying Avery's motion for a new trial based on error in the
assessment of damages; and (4) the trial court erred in refusing to
allow Avery to use a peremptory challenge to strike a prospective
juror.  We agree with appellants' second contention and reverse and
remand for a new trial.
     On April 26, 1986, Richard Avery was an employee of Carroll
Truck Lines and was driving a tractor-trailer truck.  Ward
testified that he had slowed his pickup truck to allow a car ahead
of him to turn when he was hit from behind by Avery's truck.  As a
result of the collision, a screwdriver fell off either Ward's
dashboard or the truck seat and punctured him on his ankle, causing
infection and an abscess to develop.  He also claimed back and neck
injuries.    
     Ward's wife, Betty Ward, contacted Dr. Matthew Wood, his
primary physician, and scheduled an appointment for some eight to
ten days after the incident.  Ward was hospitalized on May 13,
1986, and remained there for sixteen days.  At the hospital, Ward
fell while trying to leave his bed to go to the bathroom.  He
experienced a hernia, which led to an operation.  His total medical
bill for the hospital stay was $7,951.63.  Ward, who had previously
suffered from diabetes, hypertension, and back problems, incurred
additional medical expenses while in the hospital.  During his
sixteen-day stay, he was tested for hemorrhoids and a rash and
received ophthalmology and urology examinations.
     Ward sued Avery and Carroll Truck for negligence and sought to
collect on all medical expenses.  Following trial, the jury
returned a general verdict in Ward's favor in the amount of
$100,000.  Subsequently, the trial court refused to grant a motion
for a new trial based in part on the improper admission into
evidence of certain medical expenses.

                 I. Sufficiency of the Evidence
     Avery and Carroll Truck first contend that there was no
substantial evidence to support the verdict.  We disagree.  The
appellants correctly state our standard of review for denial of a
directed verdict.  A directed verdict for a defendant is proper
only when there is no substantial evidence from which the jurors as
reasonable individuals could find for the plaintiff.  Martin v.
Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986), quoting St. Louis S.W.
Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W.2d 334 (1967). 
Substantial evidence is that which is of sufficient force and
character that it will compel a conclusion one way or the other. 
Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993); Derrick v.
Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Kinco,
Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984). 
Evidence introduced by the plaintiff, together with all reasonable
inferences therefrom, is examined in the light most favorable to
the plaintiff when a motion for directed verdict is made by the
defendant.  See Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418
(1993); Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992).
     We will not sustain a verdict that is based on speculation and
conjecture.  Muskogee Bridge Co. v. Stansell, supra.  Here,
however, that is not the case.  Ward testified that he had slowed
and signaled and that Avery's tractor-trailer rig ran into the back
of his pickup truck.  There is certainly sufficient proof, based on
Ward's testimony, that Avery was not keeping a proper lookout and,
as a result, was negligent.  The trial court appropriately denied
the motion for a directed verdict and allowed the matter to go to
the jury for determination.

                II. Foundation for Medical Bills
     Avery and Carroll Truck next claim that there was error in
admitting medical records and testimony into evidence.  They
contend that Ward suffered from back and neck pain before the
accident as well as a recurring ulcerated condition on his ankle. 
They further claim that there was no causal connection between the
automobile accident and the various medical treatments he received
while in the hospital, and that the jury was inappropriately
permitted to consider medical expenses as damages without a proper
foundation being laid.
     A party seeking medical damages has the burden of proving the
reasonableness and necessity for that party's medical expenses. 
Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984).  In that
case, we discussed the basic principles underlying the admission of
medical evidence: 
     Our decisions recognize a distinction between proof of
     reasonableness and proof of necessity.  We have held that
     evidence of expense incurred in good faith is some
     evidence that the charges were reasonable.  However,
     evidence of expense incurred alone is not sufficient to
     show that charges were causally necessary. Yet, the
     testimony of the injured party alone, in some cases, can
     provide a sufficient foundation for the introduction of
     medical expenses incurred.  For example, if a litigant
     suffered a specific injury in an accident and was
     immediately taken to a hospital emergency room for
     treatment of only that specific injury, the injured
     party's testimony would be sufficient to establish the
     necessity of the medical expense as a result of the
     accident.  However, expert testimony would normally be
     required to prove the necessity of the expense when . .
     . expenses for hospital tests were incurred many months
     after the accident, none of the physicians in attendance
     immediately after the accident referred the litigant
     either to the admitting doctor or to the hospital, and
     the expenses on their face do not appear to be related to
     the accident. 
284 Ark. at 199 (emphasis added).  
     Avery and Carroll Truck first complain that Ward's ulcerated
ankle was a preexisting and recurring condition.  The medical
testimony of Dr. Larry Burke, a vascular surgeon, and Dr. Nicholas
Economides, a plastic and reconstructive surgeon, who were two of
Ward's treating physicians, substantiated this.  As a result, the
appellants question whether the falling screwdriver merely
exacerbated Ward's prior condition.  Moreover, they underscore that
even Ward could not be certain that the vehicular accident caused
his ulcerated condition to worsen.
     The fact that Ward was a diabetic, suffered from hypertension,
had a history of back problems, and had a prior ulcer on his ankle
that recurred from time to time does not rid the appellants of
liability.  It simply means that Ward qualified as an "eggshell
plaintiff," that is, one who was susceptible to enhanced injury by
virtue of an existing condition.  See Primm v. U.S. Fidelity and
Guaranty Ins. Corp., 324 Ark. 409, 922 S.W.2d 319 (1996). 
Furthermore, Ward testified that the rear-end collision "shook me
up pretty bad and knocked everything off the dashboard and
everything off the seat onto the floor."  He added that after the
accident; his back and neck were hurting and "then this screwdriver
object had fallen onto [his] right leg and bumped [his] left leg." 
Ward testified that the screwdriver punctured his leg.  He stated
that after the accident, his wife washed, salved, and bandaged his
leg and that his back was "steadily hurting" and got worse.  He
told both Dr. Economides and Dr. Burke that the ulcerated condition
on his leg was due to the accident.  
     We have held that matters of causation are questions of fact
for the jury to decide.  See, e.g., First Commercial Trust Co. v.
Rank, 323 Ark. 390, 915 S.W.2d 262 (1996); see also Catlett v.
Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991).  The same holds true
for matters of credibility.  Diamond State Towing Co. v. Cash, 324
Ark. 226, 919 S.W.2d 510 (1996).  Avery and Carroll Truck argue
long and hard, as they did at trial, that the element of causation
is missing with respect to the medical treatment for Ward's back,
neck, and leg.  We conclude, nonetheless, that an adequate
foundation was laid for the treatment of these conditions and that
ultimately the question of causation was one for the jury.  There
was no reversible error committed on this point.
     We reach a different conclusion regarding the hernia operation
performed on Ward while he was hospitalized.  Avery and Carroll
Truck question the causal relationship of these medical expenses to
the accident.  Ward testified regarding the hernia:
     The hernia happened to me while I was in the hospital. 
     Whether it had any bearing on this accident or not, I
     don't know.  I know it happened in the hospital. ...  [I]
     didn't fall on the floor, I eased down, but I mean, I had
     to go down.  I couldn't stand up. ... I got out of bed,
     and it hurt me so, I just went on to the floor, and they
     came and picked me up.

     At the close of Ward's evidence, Avery and Carroll Truck moved
for a directed verdict on the sufficiency of the evidence and a
partial directed verdict on the failure to prove medical bills with
reasonable certainty.  They asserted that only a few expenses by
Dr. Economides were sufficiently proved and tied into the accident. 
They specifically complained about the hernia expenses, which
included operating room costs, anesthesia and recovery room fees,
and an anesthesiologist bill, and totalled $971.40.  The trial
court, in denying the motion for a partial directed verdict,
admitted that it did not remember any testimony from the treating
physicians on the hernia and was concerned about how one could
separate out the costs related to the hernia from the other medical
expenses.  It concluded that the matter was a jury question.
     We find the Restatement of Torts to be instructive on the
hernia issue.  It is clear that a negligent actor is only
responsible for additional bodily harm resulting from the normal
efforts of those providing medical treatment as reasonably required
for the original bodily injury.  Restatement (Second) of Torts, 
457 (1965).  An illustration under comment (e) to  457 states that
a hospitalized person who elects to have a hernia repaired which is
unrelated to the accident cannot do so at the expense of the
negligent actor.
     Section 460 of the Restatement of Torts, however, provides:
     If the negligent actor is liable for an injury which
     impairs the physical condition of another's body, the
     actor is also liable for harm sustained in a subsequent
     accident which would not have occurred had the other's
     condition not been impaired, and which is a normal
     consequence of such impairment.

Restatement (Second) of Torts,  460 (1965).  We agree with Avery
and Carroll Truck that there is insufficient proof that the hernia
operation was in any wise a normal consequence of the original
impairment.  No medical testimony linked the hernia to the
accident.  Certainly, the testimony of Ward himself does not
support any connection.  A proper foundation was not laid for the
consideration of these expenses.
     Turning to the remaining medical expenses, according to Ward's
testimony, he was examined for everything from a hernia to
hemorrhoids while he was in the hospital.  In fact, Ward, who had
a lengthy medical history, testified that "[t]hey checked me for
everything.  Dr. Wood didn't let nothing go.  That's why I go to
him."  According to Betty Ward, while in the hospital, her husband
was seen by Dr. Frank McGrew for hypertension, Dr. Robert Kaplan
for complaints of a rash, Dr. Robert Hamilton for an ophthalmology
evaluation, and Dr. Richard Pearson for a urology exam.  
     Neither Ward nor any expert testified that the tests for
hemorrhoids, hypertension, and a rash were related to his being
struck by a screwdriver in the leg.  There was no foundation laid
to establish that ophthalmology and urology studies were causally
necessary.  There was no testimony that a cardiology bill, dated
nearly a year after the accident, bore the requisite causal
relationship.  While Ward argues in his brief that Dr. Wood made
the referrals for these services, Dr. Wood did not testify.  While
Ward offered expert testimony concerning the treatment of his skin
ulcers, the jury heard no expert testimony regarding the other
treatments Ward received.  Significantly, Dr. Burke testified that
he could have treated Ward for his skin ulcers as an outpatient.  
     In this age of "managed care," a sixteen-day hospital stay is
lengthy for any ailment.  We have no medical testimony as to why
Ward was admitted to the hospital in the first place.  Likewise,
there is no medical evidence as to how much of his stay was
attributed to the injuries from the accident and how much was for
the hernia and other unrelated tests and treatment.  To the extent
that the hospital bill may have included these unrelated expenses,
we must conclude that it was erroneously admitted.  
     The issue then becomes whether medical expenses erroneously
admitted can be separated from the valid medical treatment
received.  Ward submitted medical expenses for the hospital stay
and subsequent treatment totaling between $13,000 and $14,600 and
$236.25 for property damage to his pickup truck.  The jury was
instructed on damages for pain, suffering, and mental anguish and
returned a general verdict for $100,000.  
     A plaintiff may prevail in a personal-injury case upon proof
"that he sustained damages, that the defendant was negligent, and
that such negligence was the cause of his damages."  Mahan v. Hall,
320 Ark. 473, 477, 897 S.W.2d 571 (1995).  The law imposes on the
plaintiff the burden of establishing a causal nexus between his
injuries and the defendant's negligence.  Wheeler v. Bennett, 312
Ark. 411, 419-20, 849 S.W.2d 952 (1993); Bell v. Stafford, 284 Ark.
196, 199, 680 S.W.2d 700 (1984).  Reversible error occurs when a
jury is permitted to award damages on the basis of injuries that
are not caused by the defendant.  Jonesboro Coca-Cola Bottling Co.
v. Young, 198 Ark. 1032, 1036, 132 S.W.2d 382 (1939).
     Ordinarily, a general verdict is viewed as "a complete entity
which cannot be divided, requiring a new trial upon reversible
error."  Jacuzzi Brothers, Inc. v. Todd, 316 Ark. 785, 791, 875 S.W.2d 67 (1994).  We have said, however, that "a new trial can
sometimes be avoided by the entry of a remittitur" if the error
"relates to a separable item of damages."  Id.  "Such a remittitur
is fixed by the highest estimate of the element of damage affected
by the error."  Swenson v. Monroe, 244 Ark. 104, 108, 424 S.W.2d 165 (1968); Martin v. Rieger, 289 Ark. 292, 299, 711 S.W.2d 776
(1986).  But if "we are at a complete loss to say what damages the
jury would have allowed if the [improper evidence] had not been
considered," and if "we cannot with confidence arrive at any
maximum figure that the jury would surely have allowed" absent the
error, a new trial cannot be avoided by the entry of remittitur. 
Woods v. Kirby, 238 Ark. 382, 385, 382 S.W.2d 4 (1964).  If it is
necessary to speculate in order to fix a remittitur, we reverse and
remand the case for a new trial.  Arkansas State Highway Comm'n v.
Perryman, 247 Ark. 120, 125, 444 S.W.2d 564 (1969); Arkansas State
Highway Comm'n v. Darr, 246 Ark. 204, 210, 437 S.W.2d 463 (1969);
Southwestern Bell Telephone Co. v. Fulmer, 269 Ark. 727, 732, 600 S.W.2d 450 (Ark. App. 1980).
     Even if were able to exclude from the jury's verdict the
amount for the hernia operation and the amount of the hospital bill
attributed to the unrelated treatment Ward received, we would have
no way of knowing that the sole effect of the erroneously admitted
evidence was to enhance the amount of damages awarded for medical
expenses.  See Chicago, R.I. & P. Ry. Co. v. Batsel, 100 Ark. 526,
536, 140 S.W. 726 (1911).  To be sure, if we were to sustain the
pain-and-suffering award in this case, we would violate the
cardinal rule limiting recovery for pain and suffering to that
caused by a defendant's negligence.  See generally Jacob A. Stein,
Stein on Personal Injury Damages  2:1, at pp. 15-16 (2d ed. 1991)
("Compensation for pain and suffering must be proved to be the
proximate result of the wrongful act.  Remote or extraordinary
consequences of the wrongful act are excluded from consideration in
arriving at fair compensation.  There can be no recovery for pain
and suffering which must be endured whether or not the defendant
acted tortiously.  Injury which results from an intervening cause
unconnected with the defendant's wrongful act is excluded from
consideration in arriving at the amount of the award.").  See also
Southern Pac. Co. v. Hetzer, 135 F. 272, 274 (8th Cir. 1905) ("[I]n
actions for personal injury the plaintiff may recover for the
bodily suffering and the mental pain which are inseparable and
which necessarily and inevitably result from the injury."); Jurcich
v. General Motors Corp., 539 S.W.2d 595, 601 (Mo.Ct.App. 1976)
("`Pain and suffering' are recoverable as damages in those cases
where there has been a personal injury and the pain and suffering
are the proximate result of the defendant's wrongful act causing
the injury, and which necessarily and inevitably result from the
injury.").
     In Wheeler v. Bennett, supra, the plaintiff recovered $100,000
in damages for injuries she sustained in an automobile accident
caused by the defendant's negligence.  On appeal, we held that the
plaintiff failed to show a causal relationship between chest pains,
suffered some eight months after the accident, and the defendant's
negligence.  We affirmed the judgment, however, on condition that
the plaintiff remit $8,281.24, an amount reflecting only the
medical expenses incurred by the plaintiff in treating the chest
pains.  However, in the Wheeler case, we did not discuss whether
the pain and suffering element of the judgment should have been a
consideration in determining whether remittitur was proper.  It
presents no holding on the issue.  We obviously overlooked the
effect of the improperly admitted evidence of chest pains and the
resulting medical bills on the pain and suffering component of the
verdict and thereby failed in our obligation to fix a remittitur at
"the highest estimate of the element of damage affected by the
error."  Swenson v. Monroe, supra.  According to the Swenson case,
a proper remittitur requires the reduction of the entire amount of
the verdict "affected by the error" of the trial court.  We now
recognize our failure to consider the pain-and-suffering issue in
the Wheeler case and will not repeat that oversight here.    
     As Ward failed to meet his burden to show that the expenses he
incurred for the various treatments he received during his sixteen-
day hospital stay were reasonably and causally related to the
accident, we must agree that the trial court erred in admitting his
medical bills into evidence.  In so holding, it is unnecessary to
address appellants' remaining arguments relating to the jury's
assessment of damages and the trial court's refusal to allow a
peremptory challenge, as these issues are unlikely to arise again
on retrial.  
     Reversed and remanded.
     Dudley, Glaze, and Corbin, JJ., not participating.
     Special Justices Woody Bassett, James O. Cox, and Daniel B.
Thrailkill join in this opinion.