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Gines v. Edwards

Court of Appeals of Utah

March 16, 2017

Garth Gines, Appellant,
Sean Edwards, Appellee.

         Fourth District Court, Provo Department The Honorable Derek P. Pullan No. 120400620

          Leonard E. McGee and Peter R. Mifflin, Attorneys for Appellant

          Karra J. Porter, Attorney for Appellee.

          Judge Stephen L. Roth authored this Opinion, in which Judges J. Frederic Voros Jr. and Michele M. Christiansen concurred.

          Stephen L. Roth, Judge.

         ¶1 Garth Gines appeals from the jury's verdict in a case involving an automobile accident and a claim of negligence against Sean Edwards, the driver of the vehicle that collided with the vehicle in which Gines was a passenger. Gines also appeals certain of the trial court's decisions related to Edwards' expert witness. We affirm.


         ¶2 In early December 2009, Gines was a passenger in a vehicle that was rear-ended by a vehicle driven by Edwards. At trial, Edwards testified that his vehicle had been moving at approximately five to ten miles per hour when the accident occurred.

         ¶3 Gines had a preexisting spinal condition. Before the accident, Gines had undergone spinal surgery twice-once in 2005 and once in 2007-to relieve headaches and pain in his neck. Although the surgeries had temporarily relieved the pain, his symptoms returned. About six weeks before the accident, one of Gines' treating physicians recommended further surgery, opining that Gines' spinal "condition [was] not static" and was expected to "get worse." The doctor stated that, although the effect of surgery was "unpredictable, " it was "[the] best chance of improvement at this time." He noted that "all conservative measures and surgery twice" had failed, and that Gines was "truly disabled from any regular work."

         ¶4 After the accident, Gines' treating physician described him as having "neck and upper back pains, some acute and some chronic, " and an MRI showed "a slight progression of the central canal narrowing" at the two spinal levels below the level that had previously been surgically fused. When Gines' pain did not abate, he had a third surgery in June 2011 to fuse the two lower levels of his spine where his treating physician had noted "degenerative progression." Gines' pain persisted, however, and five months after the surgery, Gines was still experiencing significant pain and taking narcotic pain relievers.

         ¶5 In April 2012, Gines filed a complaint alleging that, "[a]s a direct and proximate result of [Edwards'] negligent actions, " he had "sustained serious injuries" in the automobile accident. He requested "past, present, and future" general and special damages.

         ¶6 Before trial, Gines filed two motions relevant to this appeal. The first was a February 2014 motion in limine requesting, among other things, that the trial court exclude one of Edwards' designated expert witnesses, Dr. Goldman, from testifying at trial. Gines asserted that Edwards had failed to provide Dr. Goldman's expert report by the deadline then in effect. In response, Edwards provided an expert report from Dr. Goldman and argued that the court should not exclude him as a witness. At an April 2014 hearing, before the October 2014 trial had been scheduled, the trial court found that the "failure to provide . . . [Dr. Goldman's] report was harmless" and ruled that Dr. Goldman would not be "excluded from providing testimony at trial."

         ¶7 Second, after receiving Dr. Goldman's report, Gines filed a motion for partial summary judgment. He contended that, based on the "[a]reas where Dr. Goldman['s] opinion [is] favorable to [Gines], " he was entitled to judgment as a matter of law regarding fault, causation of his injuries, the reasonable necessity of his postaccident medical treatment, and his need for future medical care. The trial court agreed that there was no question of material fact "on the issue of the negligence of [Edwards]" and "the amount of [Gines'] past medical bills, " which the court determined were $61, 296.60 (the past medical expenses). However, the court concluded that there was a dispute of material fact regarding the reasonableness and necessity of Gines' medical expenses-that is, whether the past medical expenses and any future medical expenses that Gines claimed were in whole or in part caused by the accident rather than by his preexisting spinal condition. The court explained that, while "it is undisputed that [Gines] suffered at least a musculoskeletal injury to the cervical spine, of the sprain/strain variety with a temporary aggravation and superimposition upon a previously injured and altered symptomatic cervical spine anatomy" as a result of the accident, there was a factual dispute regarding "[w]hether [Gines] suffered more serious injury." Thus, the case proceeded to trial to resolve the question of causation and the amount of damages, including past and future medical expenses and noneconomic damages.

         ¶8 At trial, Gines argued that all of the past medical expenses were caused by the accident and that future medical expenses stemming from the accident would be incurred as well. Edwards countered that "entirely 100 percent [of Gines' condition is] due to his previous injuries and ongoing degenerative condition, " and that the accident only caused "a temporary aggravation of a preexisting degenerative condition." He agreed that Gines had needed the surgery and other treatment for which he incurred the medical bills, but argued that the accident "could not have injured" Gines, based on the extent of Gines' preexisting spinal condition. Accordingly, he asked the jury to award "much, much less" than the $61, 296.60 Gines claimed for past medical expenses and nothing for future medical costs.

         ¶9 Dr. Goldman was the defense's sole medical expert witness. Prior to Dr. Goldman's taking the stand, Gines raised a question about the permissible scope of his testimony. The trial court conducted a hearing outside the presence of the jury to consider the objection. Gines argued that Dr. Goldman's expert report did not fairly disclose three issues related to apportionment of damages. First, he asserted that Dr. Goldman's report did not disclose "apportionment between what injuries were caused by the accident and what injuries were attributable to [his] preexisting pathology." Second, he claimed that the permanent impairment rating in Dr. Goldman's report did not provide a nonarbitrary basis for apportioning which injuries were caused by the accident and which were preexisting-i.e., a percentage rating both of his "whole person impairment" due to his entire "cervical spine dysfunction" and the percentage of that "whole person impairment" attributable to the accident. Gines argued that the impairment percentages included in Dr. Goldman's report were arbitrary because they were stated "as a hypothetical" and without "fully commit[ting] to it, " and that even if those percentages were disclosed, they did not provide a reasonable basis for apportioning the damages under the apportionment standard set forth in Harris v. ShopKo Stores, Inc., 2013 UT 34, 308 P.3d 449. Third, Gines asserted that Dr. Goldman's report did not disclose "what medical expenses were incurred as a result of the accident and what medical expenses were due to [Gines'] preexisting condition." Of the three, Gines indicated that he had "the greatest objection" to the issue of medical expenses, because he did not know from Dr. Goldman's report "what numbers [Dr. Goldman was] going to throw out there as far as what medical expenses are related and which ones aren't."

         ¶10 As to Gines' first and second objections, Edwards countered that Gines had suffered only "a temporary aggravation of a preexisting degenerative condition" from the accident, not any permanent injury. Thus, he argued, "apportionment really isn't necessary" where "100 percent of what [Gines] is feeling right now" was due to his preexisting condition. He also pointed out that, even though Dr. Goldman's report included impairment ratings, those percentages had been stated only hypothetically because Dr. Goldman ultimately "ha[d] committed to the position that [the effect of the accident was] temporary" and there was no permanent impairment for which a rating could be assigned. With respect to the medical expenses, Edwards asserted that, although Dr. Goldman did not "put numbers to" the costs of treatment, he did describe in his report the treatment he considered appropriate for the sort of temporary injury he believed Gines had suffered in the accident. Edwards contended that any failure to include the costs of the treatment was "harmless" and "would [not] be [a] surprise to the plaintiffs because they deal with this every day in every case that they have" and "they know what physical therapy . . . [and] chiropractic [treatment] cost[]."

         ¶11 Dr. Goldman then told the court that he believed Gines had suffered only a "temporary exacerbation of a preexisting injury" which would have required only diagnostic tests, such as x-rays and an MRI; physical therapy; medication; and home exercises. He stated that a physical therapist typically charges, on average, "$125 . . . per session" and that, including the diagnostic tests and some medication, he estimated that the total cost for the temporary injury incurred in the accident would be "somewhere in the range of 7, 8, maybe $10, 000 at most for the whole diagnosis and treatment."

         ¶12 The trial court granted in part and denied in part Gines' motion. The court stated that it agreed "with defense counsel that apportionment is not an issue, " where "defendant's position [is] that no part of Mr. Gines' condition today is attributable to the accident." The court also decided that "adequate foundation has been laid for Dr. Goldman to testify about apportionment. Zero percent if we are talking about a temporary aggravation and 20 percent" for permanent. Additionally, the court permitted Dr. Goldman to testify "that a healthy person who suffered a temporary sprain/strain of the cervical spine would incur diagnostic costs and receive treatment consisting of physical therapy, medication, and home exercises, " as those issues were "fairly disclosed in his report." However, the court excluded any testimony "as to what treatment would have been reasonable and necessary for a person with Mr. Gines' altered anatomy" as "[t]here is just nothing in the report that goes to that issue." Finally, the court found "the failure to disclose the progression rate generally charged by physical therapists" was harmless, where counsel for both parties were "experienced attorneys, " and this information "is generally known to them." The court accordingly allowed Dr. Goldman to testify about the costs of treatment for a healthy person who had experienced the kind of temporary injury Dr. Goldman believed Gines had suffered from the accident.

         ¶13 When called to the stand at the jury trial, Dr. Goldman testified that Gines had suffered only a temporary "sprain/strain injury" from the accident; that normal treatment would have required physical therapy, medication, and a "home exercise program"; and that, including physical therapy and diagnostic costs such as x-rays or an MRI, the entire treatment he had described would cost approximately seven to ten thousand dollars. Edwards' counsel complied with the court's order not to elicit testimony about the course of treatment for a person with Gines' altered anatomy, but Gines' counsel raised the issue during cross examination, and Edwards' counsel followed up on redirect. Dr. Goldman testified that the course of treatment for someone with altered spinal anatomy, such as Gines, would be similar as for a person with normal anatomy and that the treatment would cost essentially the same. Dr. Goldman was not asked and provided no opinion regarding a permanent impairment rating for Gines; the issue was not raised on direct or cross examination.

         ¶14 The jury awarded Gines $10, 000 in past medical expenses, nothing for future medical expenses, and $7, 500 for noneconomic damages (i.e., pain and suffering). Gines then moved for a directed verdict, judgment notwithstanding the verdict, or, in the alternative, a new trial. Gines contended that "Dr. Goldman was unfairly allowed to testify outside the scope of his report" and that he was "entitled to a directed verdict on the issue of special damages"-essentially the full amount of the past medical expenses-"because [Edwards] failed to provide the jury with a non-arbitrary basis for apportioning damages." The trial court denied Gines' motion, and Gines appeals.


         ¶15 Gines argues that the trial court erred when it allowed Edwards' expert witness, Dr. Goldman, to testify at trial after the defense failed to provide his expert report before the deadline. Gines further contends that, even if Dr. Goldman was allowed to testify, the court should not have permitted him to specifically testify about cost of the treatment for a person without altered cervical anatomy when those opinions were not disclosed in his expert report. "A trial court's decisions about the admissibility of expert testimony are reviewed for abuse of discretion." Johnson v. Montoya, 2013 UT App 199, ¶ 6, 308 P.3d 566.

         ¶16 Gines also argues that the trial court erred when it denied his motion for directed verdict, judgment notwithstanding the verdict, or a new trial, because Edwards' evidence regarding apportionment of injury and costs of the harm caused by the accident was too speculative to support the jury's verdict. We review a trial court's ruling on a motion for a directed verdict and a judgment notwithstanding the verdict for correctness. Blackmore v. L & D Dev. Inc., 2016 UT App 198, ¶ 24, 382 P.3d 655; State v. Bossert, 2015 UT App 275, ¶ 12, 362 P.3d 1258. We review a trial court's decision whether to grant a new trial for abuse of discretion. Bossert, 2015 UT App ...

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