Depew v. Jackson

Charles DEPEW v. James L. JACKSON

97-553                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 11, 1997


1.   New trial -- test on appeal when motion denied -- substantial evidence
     defined and discussed. -- When a motion for new trial is made on
     the ground that the verdict was clearly against the
     preponderance of the evidence and is denied by the trial
     court, the appellate court will affirm if there is substantial
     evidence to support the verdict; substantial evidence is
     evidence of sufficient force and character to compel a
     conclusion one way or the other with reasonable certainty; the
     evidence must force the mind to pass beyond suspicion or
     conjecture; in examining whether substantial evidence exists,
     the verdict is given the benefit of all reasonable inferences
     permissible in accordance with the proof.

2.   New trial -- trial court did not err in denying appellant's motion on
     evidentiary basis. -- Where portions of a neurosurgeon's testimony
     showed that appellant's spine was stable before an automobile
     accident and unstable afterward, other portions established
     that appellant had a congenital defect that was not caused or
     worsened by the collision; the loss of mobility and pain due
     to the surgery and the accompanying decrease in appellant's
     ability to perform routine activities were not proximately
     caused by appellee's negligence; given the character of this
     testimony, the jury did not have to resort to conjecture or
     speculation to arrive at its verdict, which the appellate
     court gave the benefit of all reasonable inferences
     permissible in accordance with the proof; because substantial
     evidence supported the verdict, the appellate court could not
     say that the trial court erred in denying appellant's motion
     for new trial on the ground that the verdict was clearly
     against the preponderance of the evidence.

3.   Jury -- award -- inadequacy as primary issue -- when denial of new-trial
     motion will be affirmed. -- Generally, where the primary issue on
     appeal is the alleged inadequacy of the jury's award, the
     appellate court will affirm the denial of a motion for new
     trial absent a clear and manifest abuse of discretion; an
     important issue is whether a fair-minded jury could have
     reasonably fixed the award at the challenged amount.

4.   Jury -- award -- incurred medical expenses and admitted liability does not
     translate into equivalent damage award. -- The mere fact that a
     plaintiff has incurred medical expenses and the defendant has
     admitted liability does not automatically translate into a
     damage award equivalent to those expenses.  

5.   New trial -- trial court did not err in denying motion on basis of award
     amount. -- The appellate court concluded that a fair-minded jury
     could have reasonably fixed appellant's award at the
     challenged amount; the jury obviously accepted appellee's
     theory of the case and declined to award appellant damages for
     any of his surgery-related medical bills; there was
     substantial evidence from which the jury could have decided
     that the surgery, and therefore the resulting pain and loss of
     mobility, were due to a preexisting condition and not
     proximately caused by the automobile accident; thus, a fair-
     minded jury could have reasonably decided to exclude the
     surgery-related medical bills from its award; the appellate
     court could not say that the trial court clearly and
     manifestly abused its discretion in denying appellant's new-
     trial motion on the ground that the jury erred in the
     assessment of the amount of recovery.


     Appeal from Saline Circuit Court; John W. Cole, Judge;
affirmed.
     Bernard Whetstone, P.A., by: Bernard Whetstone and Kevin Odum,
for appellant.
     Anderson & Kilpatrick, L.L.P., by: Joseph E. Kilpatrick, Jr.,
and Penny B. Wilbourn, for appellee.

     Annabelle Clinton Imber, Justice.
     The appellant obtained a $1,600 jury verdict on a negligence
claim brought against the appellee.  The appellant moved for a
new trial and argued, among other things, that the verdict was
clearly against the preponderance of the evidence and that the
jury erred in assessing the amount of the recovery.  The motion
was deemed denied, and the present appeal ensues.  We find no
error and affirm.
     On August 1, 1995, Charles Depew was a passenger in a
vehicle that was struck from behind in an automobile accident. 
Depew filed a complaint against James Jackson, alleging that the
accident and his resulting injuries were due to Jackson's
negligence.  Jackson admitted liability, and the case was
submitted to the jury on the issue of damages only.  At trial,
Depew testified that the collision snapped or popped his neck
back.  A few days later, he developed increasing pain and
soreness in his neck area.  X-rays taken after a visit to the
emergency room revealed a possible fracture in Depew's spine, and
Depew was referred to a neurosurgeon, Dr. Anthony Russell.  
     Dr. Russell examined Depew and recommended surgery. 
According to Dr. Russell, Depew had a bone that was not properly
connected to another bone in his neck -- this resulted in the
possibility that the floating bone might be driven into his brain
stem, rendering Depew a quadriplegic.  This condition, known as
an os odontoideum, was either a congenital abnormality where the
bone fails to fuse properly, or a fracture that had occurred
several years earlier and had failed to fuse and heal properly. 
Dr. Russell stated that it most likely "formed way back in the
embryonic stage."  Cables were used in the surgery to fuse the
floating bone with another piece of bone.  As a natural
consequence of this procedure, Depew lost range of motion in his
neck, including a degree of stiffness.  Constant pain was also
consistent with the surgery, in addition to headaches.  Depew
later went to another physician to receive treatment for his
pain, which included injections and other medications.  
     Depew's medical bills amounted to over $15,000.  Depew's
expert witness projected total damages in the amount of $345,794,
which figure included past and future medical expenses, loss of
household services and pain and suffering.
     The jury returned a verdict for Depew in the amount of
$1,600.  Depew filed a motion for new trial, which was deemed
denied.  While Depew articulates a number of points on appeal,
his argument consists of two primary components -- that the
verdict was clearly against the preponderance of the evidence,
and that the jury erred in the assessment of the recovery.    
                  1.  Ark. R. Civ. P. 59(a)(6).

     When a motion for new trial is made on the ground that the
verdict was clearly against the preponderance of the evidence and
is denied by the trial court, see Ark. R. Civ. P. 59(a)(6), this
court will affirm if there is substantial evidence to support the
verdict.  Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); 
Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995). 
Substantial evidence is evidence of sufficient force and
character to compel a conclusion one way or the other with
reasonable certainty.  Esry, supra.  The evidence must force the
mind to pass beyond suspicion or conjecture.  Esry, supra.  In
examining whether substantial evidence exists, the verdict is
given "the benefit of all reasonable inferences permissible in
accordance with the proof."  Patterson, supra.  
     As controlling authority, Depew relies almost exclusively on
Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996), a case
where the trial court granted the plaintiff's motion for new
trial following a defendant's verdict in a negligence case. 
Given that Young involved the appellate review of the grant of a
motion for new trial, it provides us with little guidance in the
present case.  Moreover, in Young there was no dispute that the
plaintiff's injuries were sustained as a result of the accident. 
By contrast, the issue of proximate causation is the crux of the
present case.
     In attempting to show that the verdict was not supported by
substantial evidence, Depew quotes extensively from Dr. Russell's
testimony concerning the stability of Depew's spine both before
and after the accident:
Q:  [Y]ou can go on and have a fracture and still
remain stable?

A:  Yes.  

* * * 

Q:  Then all at once you have some kind of insult or
something happens to your body and it affects your
stability at that point, then you start having trouble?

A:  Yes.

When asked his opinion of Depew's stability up until the time of
the accident, Dr. Russell answered "stable with the potential for
instability."  When asked about Depew's stability given that he
had no pain or dysfunction in the neck region up until the time
of the accident, Dr. Russell testified "[i]t would tell you that
most likely he was stable during that time although you could
still be unstable."  Dr. Russell added that Depew's pre-accident
level of functioning did "not necessarily" indicate that he was
stable, although in "almost all cases" the patient would have
known about it sooner if he had instability.  Ultimately, Dr.
Russell opined to a reasonable degree of medical certainty that
Depew was "[n]ot grossly unstable" before the accident.  The fact
that Depew had no pre-accident pain "could be an indicator that
he had become unstable at the time of the collision."  When asked
whether an "[os odontoideum] can remain stable all your life
until you're sixty-two years old," Dr. Russell replied "True." 
Plaintiff's counsel then asked, "And you'll never know you had
it?":
A:  That's true because you've still got all your
ligaments in there holding it to this bone like it's
supposed to be there.

Q:  That keeps it stable?

A:  That keeps it stable, yes. 

In operating on Depew, Dr. Russell wanted to "restore stability
to [Depew's] spine."  In a letter written to Depew's attorney,
Dr. Russell wrote that Depew's "paraspinous muscle spasm" was a
sequelae of his recent auto accident.  In other deposition
testimony Dr. Russell stated that it was his opinion within a
reasonable degree of medical certainty that "the automobile
accident aggravated the preexisting condition leading to
[Depew's] ultimate surgical procedure."  Dr. Russell answered in
the affirmative when asked whether it was a reasonable assumption
that Depew's neck pain was caused by the collision, considering
that he had no neck pain before but had persistent neck pain
afterward.
     The above-recited evidence does support Depew's theory that
the collision rendered his spine unstable, necessitating
stabilizing surgery.  However, other portions of Dr. Russell's
testimony are equivocal on the point, and tend to support
Jackson's position that the collision had nothing to do with
aggravating or worsening Depew's condition -- the accident and
resulting x-rays simply led to the discovery of the defect.
     As quoted above, Dr. Russell testified that the os
odontoideum condition was most likely congenital.  Dr. Russell
explained that "[t]he fracture was discovered by the emergency
room physician at Southwest and then brought to my attention. 
Certainly, I commented on it, felt like it needed surgery."  When
asked on cross examination whether he recommended surgery
"[b]ecause of that condition where that is not fused," and
"because you thought that condition alone posed some threat to
Mr. Depew," Dr. Russell answered in the affirmative.  Dr. Russell
opined that the os odontoideum "certainly" occurred before the
accident, and that the accident did not make the fracture any
worse.  At one point the following colloquy occurred:
Q:  And this [is] a very similar thing.  It showed a
condition that was there?

A:  Yes.

Q:  Not caused by the accident?

A:  No.

Q:  Not made worse just shown to you, is that right?

A:  Correct.

Thus, this above-recited evidence shows that Dr. Russell operated
to repair a congenital defect that was not caused or even
worsened by the accident.  The accident had the incidental result
of bringing Depew into the hospital for x-rays, which allowed the
os odontoideum condition to be discovered.  In reading from
deposition testimony at trial, Dr. Russell was asked "Do you
still stick with your statement that. . . [Depew] had a C-1, 2
instability aggravated by a motor vehicle accident?" Dr. Russell
replied:
In the terms you're asking for in a legal sense, I
guess what I'll have to say is no, you're wanting me to
say that the accident. . . When I said aggravated what
I meant to say was, brought to our attention, that's
what I should have said.  The accident brought this
problem to our attention.

Dr. Russell could not say that it was "a hundred percent certain"
that the accident aggravated a preexisting problem.  In being
asked whether he had changed his mind as to whether the accident
aggravated a preexisting injury, Dr. Russell answered:
[Reading from deposition testimony].  "I haven't
changed my mind.  I maintain the point that he had a
preexisting condition, that due to the automobile
accident, it was brought to our attention.  And it
ultimately led to his surgery, yes. I mean. . . I'll
never, ever dictate the word `aggravated' in anything I
do again because it seems to be a point of contention
here.  I don't know.  It's suddenly changed meaning for
me."  And I went on to state that due to the surgery,
he will have permanent impairment, decreased range of
motion, secondary to the operative procedure.

Depew makes much of the following statement contained in a letter
written by Dr. Russell:
In my opinion it is more likely than not that had
Charles Depew not been involved in the vehicle
collision of August 1, 1995, and had not received any
other injury to his neck then he probably would have
lived the balance of his life in the same condition
that he was in before the collision.

However, this statement does not necessarily establish that the
collision proximately caused or aggravated the os odontoideum
condition.  Dr. Russell testified that a person with an os
odontoideum condition could live "until you're sixty-two" and not
even know there was a problem.  As a result of the collision, the
os odontoideum condition was discovered and Dr. Russell
recommended surgery to prevent the possibility, however remote,
of the floating bone compressing the spinal chord and causing
paralysis.  As explained by Dr. Russell, "The surgery is not for
those ninety-nine who don't get injured it's for that one that
trips and become[s] Christopher Reeve."
     In summary, Dr. Russell's testimony cuts both ways.  While
portions of it show that Depew's spine was stable before the
accident and unstable afterward, other portions establish that
Depew had a congenital defect that was not caused or worsened by
the collision.  The incidental x-rays necessitated by the
collision simply allowed the defect to be discovered and treated. 
Thus, the loss of mobility and pain due to the surgery, and the
accompanying decrease in Depew's ability to perform routine
activities, were not proximately caused by Jackson's negligence. 
Given the character of this testimony, the jury did not have to
resort to conjecture or speculation to arrive at its verdict. 
This is especially true considering that we are to give the
verdict "the benefit of all reasonable inferences permissible in
accordance with the proof."  See Patterson, supra.  Because
substantial evidence supports the verdict, we cannot say that the
trial court erred in denying Depew's motion for new trial on the
ground that the verdict was clearly against the preponderance of
the evidence.
                  2.  Ark. R. Civ. P. 59(a)(5).
     Generally, where the primary issue on appeal is the alleged
inadequacy of the jury's award, see Ark. R. Civ. P. 59(a)(5),
this court will affirm the denial of a motion for new trial
absent a clear and manifest abuse of discretion.  See Whitney v.
Holland Retirement Ctr., Inc., 323 Ark. 16, 912 S.W.2d 427
(1996); Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996);
National Bank of Commerce v. McNeill Trucking Co., Inc., 309 Ark.
80, 828 S.W.2d 584 (1992); Smith v. Petit, 300 Ark. 245, 778 S.W.2d 616 (1989).  "An important issue is whether a fair-minded
jury could have reasonably fixed the award at the challenged
amount."  Luedemann, supra (citing Smith, supra).
     In the present case, a fair-minded jury could have
reasonably fixed the award at $1,600.  Obviously, the jury
accepted Jackson's theory of the case, and declined to award
Depew damages for any of his surgery-related medical bills.  As
more fully discussed in the prior point, there was substantial
evidence from which the jury could have decided that the surgery,
and therefore the resulting pain and loss of mobility, were due
to a preexisting condition and not proximately caused by the
automobile accident.  Thus, a fair-minded jury could have
reasonably decided to exclude the surgery-related medical bills
from its award.  The record reflects that most of the $15,000 in
medical bills incurred by Depew related to the surgery.  The mere
fact that a plaintiff has incurred medical expenses and the
defendant has admitted liability does not automatically translate
into a damage award equivalent to those expenses.  See Kratzke v.
Nestle-Beich, Inc., 307 Ark. 158, 817 S.W.2d 889 (1991).  Based
on the foregoing, we cannot say that the trial court clearly and
manifestly abused its discretion in denying Depew's motion for
new trial on the ground that the jury erred in the assessment of
the amount of recovery.
     Affirmed.