LORRI ROGERS v. GIANNA BELLUSCIO
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RENDERED: OCTOBER 19, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001804-MR
LORRI ROGERS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 04-CI-00614
GIANNA BELLUSCIO
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND VANMETER, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
KELLER, JUDGE: Following a jury trial, Lorri Rogers was awarded only a portion of
the past medical expenses she claimed to have incurred as a result of a motor vehicle
accident, $4000 for her past pain and suffering, and nothing for pain and suffering in the
future. Rogers has appealed from the Fayette Circuit Court's Judgment memorializing
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Senior Judge Daniel T. Guidugli, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
the jury's decision as well as from the order denying her motions for a judgment
notwithstanding the verdict or for a new trial. We affirm.
On the morning of August 18, 2000, Rogers, a mother of two young
children, was involved in a motor vehicle accident when the Saturn she was driving was
rear ended by the vehicle driven by Gianna Belluscio, a high school student.
Immediately before the accident, Rogers was stopped on Clays Mill Road waiting to turn
left. Belluscio misjudged the situation, thought Rogers had started her left-hand turn, and
was unable to stop in time to avoid a collision. Both drivers, who had been wearing
seatbelts, exited their vehicles, determined that no one was hurt, and then pulled their cars
onto a side street to wait for the police. Only minor damage was visible on the vehicles.
While Rogers did not believe she had been injured, over the course of the
day, her back and neck because increasingly more painful. She went to the emergency
room at Central Baptist Hospital that evening. She followed up with her primary care
physician, Dr. Lee Ricketts, who prescribed muscle relaxers, narcotic pain medication,
and physical therapy. A neurological consultation in 2001 revealed that there were no
neurological deficits causing her continuing pain. Rogers reported that her pain never
went away completely. She continued to try to manage her pain day-to-day, but began
experiencing an increase in her pain level in 2004. At that time, Dr. Ricketts referred
Rogers to the Samaritan Pain Treatment Center, where she began pain management
treatment with Dr. Luis Vascello. From July 2004 through April 2005, Rogers underwent
several procedures, including blocks to determine the origin of her pain and then
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radiofrequency treatment (RF), which is a longer lasting, not but permanent, treatment
designed to deaden the nerve endings. While the RF treatments were successful on the
left, Rogers had a bad reaction when Dr. Vascello attempted to perform the procedure on
her right side. Dr. Vascello ended the procedure at that point, and has not attempted it
again.
Rogers' medical records reveal that she made several complaints of neck
pain, back pain, and headaches prior to the 2000 motor vehicle accident. Furthermore,
after the accident, Rogers and her family took several vacations, including driving to
Disney World twice and to Washington, D.C. once. Rogers also rode a roller coaster at
Kings Island. In May 2001, Rogers started a Pampered Chef business, which included
extensive travel by car. In December 2004, she returned to work as a respiratory
therapist, as she had planned to do prior to the accident.
On February 13, 2004, Rogers filed a complaint in Fayette Circuit Court
seeking damages for permanent injuries she received in the motor vehicle accident. She
sought damages for past and future pain and suffering, for past and future medical
expenses, and for the permanent impairment of her power to earn money in the future. In
total, she demanded close to $600,000 in damages, including $47,767.86 for past medical
expenses. At trial, the circuit court granted Rogers a directed verdict on liability, as
Belluscio conceded that she had breached her duty during her opening statement.
However, the circuit court denied Rogers' motion for a directed verdict related to past
medical expenses. Two medical witnesses, Dr. Ricketts and Dr. Vascello, testified that
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such medical treatment was reasonable and medically necessary. However, the circuit
court determined that the jury had a right to examine the medical bills and determine
whether the entire amount claimed was reasonable and necessary. At the conclusion of
the trial, the jury returned a verdict awarding Rogers $4,000 in past pain and suffering, $0
for future pain and suffering, $0 for permanent impairment of her power to earn money in
the future, $6,275.84 for past medical expenses, and $0 for future medical expenses. The
circuit court entered a Judgment on June 5, 2006, memorializing the jury's verdict and
awarded Rogers $4,000 after crediting Belluscio for the $10,000 in no-fault PIP benefits
paid on behalf of Rogers.
Rogers moved the circuit court for a JNOV or for a new trial on the issue of
past medical expenses, asserting that Belluscio submitted no proof to avoid a directed
verdict on that element of damages. She argued that the only medical experts who
testified were her treating physicians, and that both testified that their treatment was
reasonable, necessary and related to the motor vehicle accident. In order to make the
award it did, Rogers argued that the jury had to have disregarded the unrefuted medical
evidence based solely on the argument of Belluscio's attorney. In response, Belluscio
argued that the jury's verdict was not based upon passion or prejudice, but was based
upon evidence elicited at trial, including Rogers' denial of any injury at the time of the
accident, her complex medical history, the limited damage to her car, and her postaccident activities. She asserts that the jury could have determined that Rogers had
suffered from a temporary muscle strain that healed within months. The circuit court
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denied Rogers' motions in an order entered August 2, 2006, stating that: “[H]aving the
opportunity to observe the plaintiff and to hear firsthand all of the other evidence in
arriving at their verdict, the jury was not bound to accept as the absolute truth the
testimony of the plaintiff or her doctors relating to her injuries.” This appeal followed.
On appeal, Rogers raises essentially two issues: 1) that she was entitled to
a JNOV on the total amount of her past medical expenses, less the $10,000 no-fault
offset, and that the jury should not have been permitted to speculate on past medical
expenses when no medical evidence was offered to counteract the opinions of her treating
physicians; and 2) that she should have been granted a new trial on damages for past and
future pain and suffering, as the jury disregarded the evidence or the instructions of the
circuit court. Belluscio disputes each of the issues Rogers raises. We shall address each
issue in turn.
ANALYSIS
A. DENIAL OF JNOV ON PAST MEDICAL EXPENSES
Roger's first argument addresses whether the circuit court properly denied
her motion for a JNOV. She asserts that she submitted unrebutted proof through her
medical experts that the treatments were both reasonable and necessary, and that
Belluscio failed to rebut the reasonableness of the bills.
Kentucky's Civil Rules of Procedure govern the filing of a motion for a
JNOV or for a new trial. CR 50.02 provides:
Not later than 10 days after entry of judgment, a party who
has moved for a directed verdict at the close of all the
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evidence may move to have the verdict and any judgment
entered thereon set aside and to have judgment entered in
accordance with his motion for a directed verdict; or if a
verdict was not returned, such party within 10 days after the
jury has been discharged may move for judgment in
accordance with his motion for a directed verdict. A motion
for a new trial may be joined with this motion, or a new trial
may be prayed for in the alternative. If a verdict was returned
the court may allow the judgment to stand or may reopen the
judgment and either order a new trial or direct the entry of
judgment as if the requested verdict had been directed. If no
verdict was returned the court may direct the entry of
judgment as if the requested verdict had been directed or may
order a new trial.
In CR 50.01, the Civil Rules address motions for a directed verdict:
A party who moves for a directed verdict at the close of the
evidence offered by an opponent may offer evidence in the
event that the motion is not granted, without having reserved
the right so to do and to the same extent as if the motion had
not been made. A motion for a directed verdict which is not
granted is not a waiver of trial by jury even though all parties
to the action have moved for directed verdicts. A motion for
a directed verdict shall state the specific grounds therefor.
The order of the court granting a motion for a directed verdict
is effective without any assent of the jury.
The Court of Appeals addressed these Rules in Taylor v. Kennedy, 700 S.W.2d 415, 416
(Ky.App. 1985):
In ruling on either a motion for a directed verdict or a motion
for judgment notwithstanding the verdict, a trial court is
under a duty to consider the evidence in the strongest possible
light in favor of the party opposing the motion. Furthermore,
it is required to give the opposing party the advantage of
every fair and reasonable inference which can be drawn from
the evidence. And, it is precluded from entering either a
directed verdict or judgment n.o.v. unless there is a complete
absence of proof on a material issue in the action, or if no
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disputed issue of fact exists upon which reasonable men could
differ.
Rogers first directs our attention to KRS 304.39-020(5)(a), which defines a
“medical expense” as “reasonable charges incurred for reasonably needed products,
services, and accommodations, including those for medical care, physical rehabilitation,
rehabilitative occupational training, licensed ambulance services, and other remedial
treatment and care. . . . There shall be a presumption that any medical bill submitted is
reasonable.” She then cites to four cases for the proposition that the submission of a
medical bill is enough to establish its reasonableness. We have reviewed those cases, and
agree with Belluscio's interpretation. The cases of Daugherty v. Daugherty, 609 S.W.2d
127 (Ky. 1980), and Townsend v. Stamper, 398 S.W.2d 45 (Ky. 1965), both deal with
evidentiary issues concerning the admissibility of medical bills. Likewise, the cases of
Bolin v. Grider, 580 S.W.2d 490 (Ky. 1979), and this Court's unpublished opinion in
Green v. Jackson, 2002-CA-001127-MR (November 7, 2003), address whether the
plaintiffs' medical expenses exceeded the statutory threshold. None of the cases Rogers
cited address the issue in this case related to causation.
In addition to the cases Rogers cited, we have reviewed Carlson v.
McElroy, 584 S.W.2d 754 (Ky.App. 1979), an opinion cited by Belluscio. In Carlson,
this Court stated:
The fact [that] Carlson received a directed verdict on
liability does not necessarily mean she was entitled to some
damages, if, as here, the jury believed she was not injured, or,
if so, she was injured as a result of some other cause. In any
event, the jury was not bound to accept as the absolute truth
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the testimony of either Carlson or her doctors relating to her
injuries, and having the opportunity to observe Carlson giving
her testimony and to hear first hand all the other evidence in
arriving at their verdict, the jury could have believed Carlson
grossly exaggerated the extent of her injuries, if any, or that
her injuries were not as a result of this accident.
Id. at 756.
In the present matter, the record supports the jury's decision to award less
than the amount requested as past medical expenses. The circuit court properly held that
the jury was entitled to determine whether the expenses were reasonable and necessary,
which was reflected in the jury instructions. The instructions further required the jury to
find that Rogers sustained the injuries as a direct result of the accident, but could also
compensate her for losses due to the activation or aggravation of any preexisting
condition. Based upon the facts of this case, the jury reasonably determined that Rogers
should not be compensated for the entirety of the past medical expenses she claimed.
The vast majority of the claimed expenses represented bills for pain management
treatment, which totaled approximately $35,000. Rogers did not even seek this treatment
until July 2004, close to four years after the accident and several months after she filed
the subject lawsuit. Furthermore, as Belluscio pointed out, Rogers continued with her
daily life, including raising her children, beginning a business that included travel by
automobile, participating in family vacations requiring driving long distances, and going
back to work in her chosen profession as a respiratory therapist. The jury was entitled to
consider the entirety of the evidence and testimony in making its decision. Based upon
that evidence, the jury reasonably determined that Rogers was not entitled to be awarded
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the full amount of past medical expenses, despite the medical testimony that all of the
treatment she underwent was reasonable and necessary, and related to the 2000 accident.
We hold that the circuit court did not commit any error or abuse its
discretion in denying Rogers' motion for a JNOV on the award of past medical expenses.
B. NEW TRIAL ON PAIN AND SUFFERING
Next, Rogers argues that she is entitled to a new trial based upon the jury's
disregard of the evidence, and that the circuit court erred in denying her this relief. The
grounds for a new trial are listed in CR 59.01 as follows:
A new trial may be granted to all or any of the parties and on
all or part of the issues for any of the following causes:
(a) Irregularity in the proceedings of the court, jury or
prevailing party, or an order of the court, or abuse of
discretion, by which the party was prevented from having a
fair trial.
(b) Misconduct of the jury, of the prevailing party, or of his
attorney.
(c) Accident or surprise which ordinary prudence could not
have guarded against.
(d) Excessive or inadequate damages, appearing to have been
given under the influence of passion or prejudice or in
disregard of the evidence or the instructions of the court.
(e) Error in the assessment of the amount of recovery whether
too large or too small.
(f) That the verdict is not sustained by sufficient evidence, or
is contrary to law.
(g) Newly discovered evidence, material for the party
applying, which he could not, with reasonable diligence, have
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discovered and produced at the trial.
(h) Errors of law occurring at the trial and objected to by the
party under the provisions of these rules.
Our standard of review from the denial of a motion for a new trial “is limited to whether
the trial court's denial of [the] motion was clearly erroneous[.]” Miller v. Swift, 42
S.W.3d 599, 601 (Ky. 2001).
In the present case, Rogers has focused on subsection (d) of CR 59.01, and
asserts that the jury's award of damages for pain and suffering, both past and future, was
inadequate. The jury awarded $4000 in past pain and suffering and $0 in future pain and
suffering. In Miller, the Supreme Court addressed the adequacy of a jury's pain and
suffering award, holding that “if the jury's verdict of zero damages for pain and suffering
is supported by [the] evidence, the trial court was not clearly erroneous in denying
Millers' motion for a new trial.” Id. at 601. Relying upon its earlier opinion of Cooper v.
Fultz, 812 S.W.2d 497, 502 (Ky. 1991), the Miller Court further stated, “Whether the
award represents 'excessive or inadequate damages appearing to have been given under
the influence of passion or prejudice or in disregard of the evidence or the instructions of
the court,' CR 59.01(d), is a question dependent on the nature of the underlying
evidence.” Miller, 42 S.W.3d at 602 (emphasis in original).
We agree with Belluscio that the circuit court properly denied Rogers'
motion for a JNOV on her award, or lack of award, for past and future pain and suffering.
The jury agreed that Rogers was entitled to an award for past pain and suffering damages,
but found that she was entitled to considerably less than she had requested. The medical
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evidence of record certainly supports that Rogers experienced pain following the accident
in that she sought and received treatment for her injuries. However, the record is clear
that Rogers was able to continue with her life, including participating in several family
vacations, trips to theme parks, as well as returning to work first as a Pampered Chef
associate and later in her trained profession as a respiratory therapist. Based upon the
evidence of record, the jury's decision with regard to damages for pain and suffering does
not appear to be the result of passion or prejudice, and does not elicit shock and surprise.
Rather, the decision represents the jury's determination that the injuries Rogers sustained
in the accident, while causing her pain at first and necessitating treatment, resolved over
the first few months following the accident. Accordingly, the circuit court's decision to
deny Rogers' motion for a new trial is not clearly erroneous.
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas K. Herren
Lexington, Kentucky
E. Douglas Stephan
Lexington, Kentucky
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