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Stevenett v. Wal-Mart Stores Inc.3/18/1999
This opinion is subject to revision before publication in the Pacific Reporter.
OPINION (For Official Publication)
Third District, Salt Lake Department The Honorable Frank G. Noel
Defendant Wal-Mart Stores Inc. appeals from a final judgment amending a jury verdict in favor of plaintiff Allyson Stevenett arising from a personal injury action. Wal-Mart claims that the trial court made erroneous rulings regarding the admissibility of certain evidence and the award of costs to plaintiff which warrant reversal for a new trial. In addition, plaintiff cross-appeals, arguing that the court improperly reduced the jury's award of special damages. We affirm.
BACKGROUND
We recite the facts in a light most favorable to the jury's verdict. Plaintiff was injured while jogging through defendant's parking lot when she tripped and fell over a metal rod protruding from a cart rack. After the incident, plaintiff sought medical attention from a chiropractor, and later from Dr. Howard Reichman, a neurosurgeon. Dr. Reichman tried to alleviate plaintiff's symptoms by removing two herniated disks from her spine and performing two thoracic outlet surgeries. Plaintiff later brought a personal injury action against defendant for her injuries.
Eight months before trial, defendant notified plaintiff of its intent to call Dr. A. Creig MacArthur as an expert witness. Less than three weeks later, plaintiff underwent an independent medical examination (IME) by Dr. MacArthur. Dr. MacArthur prepared his IME report and a supplemental report the same day. The reports omitted any opinion regarding the cause of plaintiff's injuries. However, in his deposition three days before trial, Dr. MacArthur testified in detail about his IME report, and added his opinion that there was only a one-percent chance that plaintiff's fall in the parking lot could have caused her cervical and thoracic injuries. The deposition was taken immediately before trial as a result of Dr. MacArthur's unwillingness to be deposed earlier, as requested by plaintiff.
One day before trial, plaintiff presented a motion in limine seeking to exclude Dr. MacArthur's opinion regarding the cause of her injuries on three grounds: First, that Dr. MacArthur failed to provide a detailed Conclusion as to causation in his IME report in violation of Utah Rule of Civil Procedure 35. Second, that Wal-Mart failed to supplement interrogatories regarding affirmative defenses in violation of Utah Rule of Civil Procedure 26. Third, that the revelation of this previously unknown opinion was a violation of Utah Rule of Evidence 403's prohibitions against unfair surprise. The court agreed in "all respects," ruling that defendant could not use any of Dr. MacArthur's testimony as to causation to rebut the testimony of plaintiff's expert, Dr. Reichman. Despite this ruling, however, Dr. MacArthur testified at trial that in his opinion plaintiff's fall was not the type of fall which could cause a whiplash injury of the type sustained by plaintiff.
On the third day of trial, plaintiff's counsel recalled plaintiff as a witness and tried to introduce four medical bills totaling $10,551.81, which plaintiff had not provided to defendant before trial. Over defendant's objections for lack of foundation and unfair surprise, the court admitted these additional medical expenses through plaintiff's testimony.
At the end of trial, plaintiff requested past special damages in the amount of $85,184.51. The jury returned a verdict exceeding this amount, awarding plaintiff $93,000 in past special damages. On July 8, 1997, the court entered its judgment reflecting $93,000. Nine days later, defendant
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