IN THE COURT OF APPEALS OF IOWA
No. 3-707 / 02-1051
Filed October 29, 2003
JAMES R. COONEY,
BRADLEY YAHNKE, GARY YAHNKE, and DORIS YAHNKE,
Appeal from the Iowa District Court for Jones County, Larry J.
Cooney appeals, challenging 1) the adequacy of the district
court's damage award, 2) the district court's denial of his motion for
continuance of trial, and 3) a jury instruction. AFFIRMED.
Pete Leehey of Pete Leehey Law Firm, P.C., Cedar Rapids, for
James Craig and Nichole Claussen of Moyer & Bergman, P.L.C., Cedar
Rapids, for appellees.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
James Cooney was driving a bus down an eastern Iowa highway when Brad
Yahnke ran a stop sign and broadsided the bus with his pick-up truck.
Cooney sued Yahnke and obtained a jury verdict of $20,000.
Cooney moved for a new trial, contending the award was inadequate and
contrary to the evidence. He later supplemented the new trial motion to
allege that the district court should have granted his pretrial motion for
continuance. The district court denied the motion and this appeal
I. Scope of Review
The scope of our review depends on the grounds asserted in the new
trial motion. In re Estate of Long ex. rel. Smith v. Broadlawns Med. Ctr.,
656 N.W.2d 71, 88 (Iowa 2002). "'[I]f the motion is based on a legal
question, our review is on error,' but if 'the motion is based on a
discretionary ground, we review it for an abuse of discretion.'" Id.
We review a ruling on a motion for new trial based upon the adequacy
of a jury verdict for an abuse of discretion. Johnson v. Knoxville Cmty.
Sch. Dist., 570 N.W.2d 633, 635 (Iowa 1997). We also review the court's
denial of the motion to continue for an abuse of discretion. Ragan v.
Petersen, 569 N.W.2d 390, 392-93 (Iowa Ct. App. 1997).
II. Adequacy of Verdict
Cooney contends the jury award of $20,000 is inadequate because his
medical expenses alone exceeded $22,000. He suggests that the jury must
have relied on a "flawed" defense expert opinion in declining to award more
We begin with the well established principle that "[t]he amount of
damages awarded is peculiarly a jury, not a court, function." Gorden v.
Carey, 603 N.W.2d 588, 590 (Iowa 1999). In reviewing the adequacy of a
damage award we ask whether the award will "fairly and reasonably
compensate an injured party for the injury sustained." Householder v. Town
of Clayton, 221 N.W.2d 488, 493 (Iowa 1974).
The jury was instructed that it needed to consider "[t]he reasonable
value of necessary hospital charges, doctor charges, prescriptions, and
other medical services from the date of injury to the present time." The
jury was also instructed to consider lost wages, loss of function of the
body, the present value of future loss of function of the body, physical
and mental pain and suffering, and the present value of future physical and
mental pain and suffering.
Because the jury entered a general verdict, we have no way of knowing
how the jury compensated Cooney for each element of damages. See Matthess
v. State Farm Mut. Ins. Co., 521 N.W.2d 699, 703 (Iowa 1994). We do know
that the record contains disputed evidence concerning the cause and
severity of Cooney's impairments. Dr. Sims, a witness for the defense,
attributed Cooney's pain to degenerative disk disease of the spine that
preexisted the accident. In contrast, Cooney's treating physician and two
other physicians opined that Cooney's pain was caused by the accident. As
for the severity of the pain, characterizations ranged from "minor" to
"chronic" to "progressive worsening." Given the disputed evidence
concerning the relationship of Cooney's pain to the accident as well as
Cooney's failure to advise the jury of the total damages he was seeking for
medical expenses, the jury very well could have found that some of the pain
treatments Cooney received were not "necessary" within the meaning of the
jury instruction. As such, the jury could have found the cost of those
treatments would not be reimbursed. This was the jury's prerogative and
"[w]e should not set aside a verdict simply because we might have reached a
different conclusion." Id. at 704. There was sufficient evidence in the
record from which a jury could have found that $20,000 was enough to
compensate Cooney for his injuries.
III. Motion to Continue Trial
Cooney next contends the district court abused its discretion in
denying his motion for continuance of the trial date. We disagree. Cooney
filed his petition in August 2000. The district court administrator set a
trial date of May 20, 2002. Less than three weeks before trial, Cooney
moved to continue the trial, alleging new medical evidence would be
generated in the near future. We agree with the defendants that Cooney had
ample opportunity to generate this evidence between the time of the
accident in mid-1998 and the date of trial, and indeed did so. The medical
reports he attached to his motion do not reflect a new diagnosis but
continued evaluation for the same medical problems that surfaced after the
accident. We affirm the district court's denial of Cooney's motion for
IV. Challenge to Jury Instruction
Cooney finally challenges the district court's failure to instruct
the jury on future medical expenses as a component of a damage award. We
agree with Yahnke that Cooney did not preserve error on this issue. See
Sievers v. Iowa Mut. Ins. Co., 581 N.W.2d 633, 638 (Iowa 1998). Although
his proposed instructions included an itemization for future medical
expenses, the court's damage instruction did not, and Cooney failed to
object to this omission. Accordingly, we decline to consider his
 This figure appears in the Appellant's brief without citation to the
appendix or record. The jury apparently did not have a summary document
containing a total of Cooney's medical expenses.
 Cooney does not specifically argue that the jury failed to award him
damages for pain and suffering.