Lisa K. Davis v. Ann M. Taylor

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION I

LISA K. DAVIS

APPELLANT

v.

ANN M. TAYLOR

APPELLEE

CA02-670

APRIL 16, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[CIV2001-243]

HONORABLE MICHAEL FITZHUGH, CIRCUIT JUDGE

REVERSED and REMANDED

Appellant, Lisa K. Davis, sued appellee, Ann M. Taylor, for injuries arising from an automobile accident. This appeal arises from the trial court's admission of evidence suggesting that appellant received unreasonable and unnecessary medical treatment and the evidence regarding the misdemeanor conviction of appellant's treating chiropractor. The jury awarded only $1,295.00 total for medical bills when the costs of the chiropractic treatment alone totaled $5,078.00. We reverse and remand.

Appellant sustained injuries as a result of a two-car automobile collision with appellee. After the collision, appellant sought medical treatment for whiplash-type symptoms primarily from a local Fort Smith chiropractor, Dr. Phil Roberts. Appellant's medical treatment from Dr. Roberts spanned a five-month period, and the cost totaled $5,078.00. Prior to trial, appellant moved in limine to prohibit appellee from arguing, or attempting to introduce any evidence suggesting, that

the medical bills of Dr. Phil Roberts were excessive, unreasonable, or unnecessary. She also movedin limine to prohibit appellee from attempting to introduce or solicit testimony from the treating chiropractor. Subsequent to Dr. Roberts' treatment of appellant, he was convicted of a misdemeanor tax violation in federal court. The trial court, by letter opinion, denied the motions in limine.

In refusing to prohibit the introduction, the trial court cited Ponder v. Cartmell, 301 Ark. 409, 784 S.W.2d 758 (1990) and Kay v. Martin, 300 Ark. 193, 777 S.W.2d 859 (1989). The court stated that in reviewing those cases, it was of the opinion that it was a jury question whether the medical treatment was necessary. In her opening statement, appellee stated it would call an expert witness who would testify that it was his opinion that the treatment was grossly excessive in the case. Appellee further argued in opening statements that "one of the issues to address, is Dr. Roberts' excessive grossly excessive treatment in this case." At trial, during the colloquy between the court and both counsel concerning the admissibility of appellee's expert witness, Brad McPherson, a licensed physical therapist, the court sustained appellant's objection to appellee questioning the therapist regarding his opinion as to the excessiveness of the treatment performed by Dr. Roberts. However, the court allowed testimony from the therapist that provided a general time frame for treatment of whiplash-type injuries. The therapist stated that "[i]t takes six to eight weeks, given my experience, for a mild strain to the back or neck to be resolved." In her brief, appellee candidly states that she "presented evidence that Ms. Davis's chiropractor had engaged in `overutilization' of treatment." Appellant claims that the court abused its discretion in allowing introduction of this evidence because it provided an improper inference that Dr. Roberts' treatment was excessive. We agree.

A plaintiff who seeks to recover medical expenses must prove the expenses are reasonable and necessary. Ponder v. Cartmell, supra, 301 Ark. at 412, 784 S.W.2d at 761. "Necessary" means causally related to the tortfeasor's negligence. Id. If a plaintiff proves that her need to seek medicalcare was precipitated by the tortfeasor's negligence, then the expenses for the care she receives, whether or not the care is medically necessary, are recoverable. Id.

The relevant issue was whether the medical expenses incurred by appellant were causally related to the accident caused by appellee. Because appellant proved that her need to seek the chiropractic care was precipitated by appellee's negligence, she is entitled to recover the expenses for the treatment she received from Dr. Roberts, whether or not he "engaged in `overutilization' of treatment." The evidence was irrelevant and should have been excluded. Therefore, we reverse and remand.

Under the facts of this case, it was also error for the trial court to allow the admission of Dr. Roberts's conviction for tax evasion. Citing numerous federal decisions and Wright & Gold, Federal Practice and Procedure: Evidence § 6135, appellee insists that evidence of a witness's crimes of dishonesty is always admissible and that a trial court has no discretion to exclude a crime involving dishonesty. Without commenting on the appropriateness of the federal procedural rule, the law in Arkansas is that the trial court has discretion in determining the admissibility of prior convictions for impeachment purposes. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). See also Griffin v. State, 307 Ark. 537, 823 S.W.2d 446 (1992); Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988); Jones v. State, 15 Ark. App. 283, 692 S.W.2d 775 (1985).

Rule 609(a)(2) of the Arkansas Rules of Evidence provides that prior crimes involving dishonesty may be used for the purpose of attacking the credibility of a witness. Evidence of prior criminal convictions is limited for the purpose of discrediting the witness's testimony, not to show that the witness is a bad person. See Henry v. State, 278 Ark. 478, 647 S.W.2d 419, cert. denied, 464 U.S. 835 (1983). The rule concerns itself with the credibility of the witness who is offeringtestimony in the current case. Pollard v. State, Supra.

Appellant argues that appellee called Dr. Roberts' as a witness over appellant's objections and used the conviction and Dr. Roberts' federal incarceration solely to bolster her argument that Dr. Roberts "overutilized" treatment. Appellee does not dispute that claim; she merely states that the court had no discretion but was obligated to admit the evidence of the conviction. We agree with appellant and reverse on that point as well.

Concerning both issues on appeal, appellee further argues that appellant waived her right to raise either issue because she was the first to mention the "sins of Dr. Roberts" in opening statements regarding what she anticipated appellee would present into evidence. We find no merit to that argument. Appellant made these objections in her motions in limine which were denied; therefore, she is entitled to bring these matters up first at trial without waiving her objections made in her motion. Burnett v. Fowler, 315 Ark. 646, 869 S.W.2d 694 (1994).

Accordingly, we reverse and remand.

Gladwin and Neal, JJ., agree.